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 excessiveLegislation 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 170Category: Principal judgment Parties: Paul Baradi (Appellant)
Crown (Respondent)Representation: Counsel:
Solicitors:
T Quilter (Applicant)
M England (Crown)
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…
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- AGLC
- Baradi v The Queen [2018] NSWCCA 143
- Case
- [2018] NSWCCA 143
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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