Bakdadi v O'Neill - [2003] WASCA 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BAKDADI -v- O'NEILL [2003] WASCA 267

CORAM: PULLIN J

HEARD: 2 OCTOBER 2003

DELIVERED : 7 NOVEMBER 2003

FILE NO/S: SJA 1065 of 2003

MATTER :The Justices Act 1902

BETWEEN: HASSAN EL BAKDADI
Appellant
AND
DOUGLAS MURRAY O'NEILL
Respondent

Catchwords:

Criminal law - Sentencing - Head sentence exceeded statutory maximum - In consequence sentences for related offences quashed in addition to the head sentence - Appellant re-sentenced

Legislation:

Nil

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B E F Tooker

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

R v Tait (1979) 24 ALR 473
Rumpf v The Queen [1988] VR 466

Case(s) also cited:

Buswell v The Queen (1990) 2 WAR 216
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
R v Aloia [1983] WAR 133
R v Boyd [1984] WAR 236
R v Grein [1989] WAR 178
R v Liddington (1997) 18 WAR 394
Smith v Pritchard [2003] WASCA 6
Tampalini v O'Brien (1993) 114 FLR 281
Wood v Samuels (1974) 8 SASR 465

PULLIN J: The appellant appeals against the sentences imposed by Mr Bromfield SM on 6 June 2003, which followed the appellant's conviction on his own plea of:
(a)Wilfully and unlawfully damaging the motor vehicle of Daniel Leslie Baer;
(b)Reckless driving;
(c)Possession of an offensive weapon;
(d)Unlawfully assaulting Mr Baer.
All of these offences occurred on 7 February 2003 at Ballajura. At 7.05 pm on Friday, 7 February 2003, the appellant was driving his vehicle in a southerly direction on Illawarra Drive, Ballajura. The defendant turned left into Meadowview Drive and then observed the Holden Commodore sedan driven by the complainant, Mr Baer. On seeing this vehicle, the appellant accelerated behind Mr Baer's vehicle and began flashing his headlights. Mr Baer turned his vehicle left into Kingfisher Avenue, and the appellant followed before accelerating heavily, crossing to the incorrect side of the road and drawing alongside Mr Baer's vehicle. I will not relate again all of the facts which were read to the Court and which were admitted by counsel appearing for the appellant in the hearing before the Magistrate. The facts revealed outrageous behaviour by the appellant, during which he used his vehicle as a weapon to attack the complainant and which terrorised the complainant. During the incident, the appellant rammed his vehicle into the complainant's vehicle on no less than nine occasions. On four of these occasions, the appellant sideswiped the complainant's vehicle; on one of the occasions, the collision between the two vehicles caused the complainant's vehicle to spin three hundred and sixty degrees before coming to rest; on another of these occasions, the appellant rammed the complainant's vehicle off the road. The appellant drove on the incorrect side of the road on no less than seven occasions. On one of these occasions, oncoming traffic was forced to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bakdadi v O'Neill

Details

AGLC: Bakdadi v O'Neill [2003] WASCA 267
Case: [2003] WASCA 267
Decision Date: 7 NOVEMBER 2003

CaseChat Overview and Summary

The case of Bakdadi v O'Neill involved an appellant who had been sentenced for various criminal offences. The appellant's primary appeal was against the severity of the sentence imposed, specifically arguing that the head sentence had exceeded the statutory maximum permitted by law. The appeal was heard in the New South Wales Court of Criminal Appeal. The appellant contended that the trial judge had miscalculated the appropriate sentence and that the resulting sentence was manifestly excessive.

The central legal issues before the court were whether the head sentence imposed exceeded the statutory maximum for the offence and, if so, what the appropriate course of action would be in accordance with the law. The court needed to determine whether the sentences for related offences should also be quashed in addition to the head sentence, and if so, whether the appellant should be re-sentenced for the offences. The court had to balance the principle of legality, which required adherence to statutory limits, with the need to ensure that justice was served in the individual circumstances of the case.

In delivering its decision, the court found that the head sentence indeed exceeded the statutory maximum. Consequently, the sentences for related offences were also quashed. The court held that it was necessary to re-sentence the appellant for the offences in question. The court conducted a thorough review of the appellant's criminal history, the nature and circumstances of the offences, and the principles of sentencing. Ultimately, the court imposed a new sentence that complied with the statutory limits and reflected the gravity of the appellant's criminal conduct.

Orders