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Baradi v The Queen

Baradi v The Queen

Case [2018] NSWCCA 143 16 July 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Baradi v R [2018] NSWCCA 143
Hearing dates: 21 May 2018
Decision date: 16 July 2018
Before: Simpson AJA at [1]
Johnson J at [55]
Adamson J at [110]
Decision:
(a) Time for filing the application for leave to appeal be extended to 13 March 2018.
(b) Grant leave to appeal.
(c) With respect to the assault offence under s 61 Crimes Act 1900, dismiss the appeal against conviction.
(d) With respect to the sentences imposed on 11 May 2017, dismiss the appeal against sentence.

Catchwords:
CRIMINAL LAW – appeal – conviction – whether the elements of offence of assault were contained in offence of aggravated break and enter – whether conviction for assault resulted in double punishment – whether criminality of assault wholly encompassed in break and enter offence

CRIMINAL LAW – appeal – sentence – whether sentence imposed is double punishment – whether distinct criminality in relation to two offences
CRIMINAL LAW – appeal – sentence – where offence a serious instance of domestic violence – where significant subjective factors – where starting point of sentence was six years – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 ss 61; 86(1)(b); 112(2)
Crimes (Sentencing Procedure) Act 1999 s 59
Drug Misuse & Trafficking Act 1985 (NSW)
Cases Cited: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Cherry v R [2017] NSWCCA 150
Davis v R [2006] NSWCCA 392
Homsi, Houssam v R; Karamalakis, Voula v R [2011] NSWCCA 164
Innes v R [2018] NSWCCA 90
Jidah v R (2014) 246 A Crim R 368; [2014] NSWCCA 270
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Campbell and Brennan [1981] QdR 516
R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
R v Newell [2004] NSWCCA 183
R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151
R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170
Category: Principal judgment
Parties: Paul Baradi (Appellant)
Crown (Respondent)
Representation:
Counsel:
T Quilter (Applicant)
M England (Crown)
Solicitors:
Marsdens Law Group
Solicitor for Public Prosecutions

File Number(s): 2016/225692
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Baradi [2017] NSWDC 175

Date of Decision:

11 May 2017

Before:

His Honour Judge Berman SC

File Number(s):

2016/225692

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant pleaded guilty to one count of common assault and one count of aggravated break and enter and commit serious indictable offence, arising out of offences committed on 26 July 2016. The circumstance of aggravation was that the appellant knew that persons were present in the premises. The serious indictable offence the appellant was…

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 Baradi v The Queen

Details

AGLC: Baradi v The Queen [2018] NSWCCA 143
Case: [2018] NSWCCA 143
Decision Date: 16 July 2018

CaseChat Overview and Summary

The appeal concerns a conviction for assault occurring during an aggravated break and enter, with the defendant arguing that the elements of the assault offence were contained within the aggravated break and enter offence, leading to double punishment. The defendant also contended that the assault offence did not constitute a distinct crime, as the criminality of the assault was wholly encompassed by the break and enter offence. The appeal further addressed the severity of the sentence imposed, specifically whether it constituted double punishment, and if there was distinct criminality in relation to the two offences. The appellant argued that the six-year starting point for sentencing was manifestly excessive, particularly considering the significant subjective factors and the seriousness of the domestic violence incident.

The legal issues central to this appeal revolved around the scope and application of the principles of double punishment in criminal law. The court was required to determine if the elements of the assault offence were sufficiently distinct from those of the aggravated break and enter to warrant separate convictions. Additionally, the court had to consider whether the imposition of a sentence for the assault offence, in light of the break and enter conviction, constituted double punishment. The court also needed to assess the appropriate starting point for sentencing, given the severity of the offence and the presence of significant subjective factors, and whether the sentence imposed was manifestly excessive.

In examining these issues, the court noted that the assault during the break and enter was a significant and independent act of violence, justifying a separate conviction and punishment. The court held that the elements of the assault offence were distinct from those of the aggravated break and enter, and thus, the conviction for assault did not result in double punishment. Regarding the sentencing, the court acknowledged the seriousness of the domestic violence incident and the subjective factors but determined that the six-year starting point was appropriate. The court ultimately found that the sentence imposed was not manifestly excessive, considering the gravity of the offence and the need for deterrence.

The final orders of the court upheld the conviction for the assault offence, affirmed that the imposition of a separate sentence for the assault did not constitute double punishment, and confirmed the appropriateness of the sentence imposed. The court emphasised the importance of addressing domestic violence offences with severity, while also taking into account the specific circumstances of each case. The appeal was dismissed, and the original sentence was affirmed.

Orders