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Baroudi v R

Baroudi v R

Case [2007] NSWCCA 48 27 February 2007

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Baroudi v Regina [2007] NSWCCA 48
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/2513

HEARING DATE(S): 31 January 2007

JUDGMENT DATE: 27 February 2007

PARTIES:
Tarek Baroudi
Regina

JUDGMENT OF: Sully J Howie J Price J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0153

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 12 May 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Tarek Baroudi

COUNSEL:
Peter Hamill SC - Applicant
D Arnott SC - Crown

SOLICITORS:
Camilla Taylor - Applicant
S Kavanagh - Crown

CATCHWORDS:
Criminal law - sentencing - Crown concession on non-parole period - procedural fairness - armed robbery - relevance of guideline judgment - calculation of composite discounts - special circumstances - double counting - totality of sentences

LEGISLATION CITED:
Crimes Act 1900 s 86(2)(a), s 97 (1), 97 (2)
Crimes (Sentencing Procedure) Act 1999 s 43( 2)
Criminal Appeal Act 1912 s 6(3)

CASES CITED:
Ahmad v Regina [2006] NSWCCA 177
Parker v DPP (1992) 28 NSWLR 282
Postiglione v The Queen (1997) 189 CLR 295
R v Capar (2002) 136 A Crim R 564
R v Henry (1999) 46 NSWLR 346
R v Knight (2005) 155 A Crim R 252
R v Lee [2000] NSWCCA 392
R v Lynn [2004] NSWCCA 222
R v Mako [2004] NSWCCA 90
R v Pham [2006] NSWCCA 288
R v "S" (2000) 111 A Crim R 225
R v Simpson (2001) 53 NSWLR 704
R v Sukkar [2006] NSWCCA 92
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Olbrich (1999) 199 CLR 270
R v Waqa (No 2) [2005] NSWCCA 33
R v Wilson [2005] NSWCCA 219
Regina v Fidow [2004] NSWCCA 172
SZ v R [2007] NSWCCA 19
The Queen v Watson Ex parte Armstrong (1976) 136 CLR 248
Vakauta v Kelly (1989) 167 CLR 568

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2513
SULLY J
HOWIE J
PRICE J
27 February 2007

Tarek BAROUDI v REGINA

Judgment

SULLY J: I agree with Price J.
HOWIE J: I agree with Price J.
PRICE J: The applicant Tarek Baroudi seeks leave to appeal against the severity of the sentences imposed upon him by Sorby DCJ in the District Court at Parramatta on 12 May 2006.
The applicant pleaded guilty in the Local Court to a six offences namely:
Count 1: On 21 April 2003 at Lansvale, robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900.
Count 2: On 22 September 2003 at Allawah, robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900.
Counts 3, 4 and 5: Three counts of detain person in company with intent to obtain an advantage on 22 September 2003 contrary to s 86(2)(a) of the Crimes Act 1900.
Count 6:…

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 Baroudi v R

Details

AGLC: Baroudi v R [2007] NSWCCA 48
Case: [2007] NSWCCA 48
Decision Date: 27 February 2007

CaseChat Overview and Summary

The case of Baroudi v R involved an appeal by the respondent, the Crown, against the sentence imposed on the appellant, Baroudi, for his conviction of armed robbery. The Crown sought a reduction in the non-parole period of Baroudi's sentence, arguing that the primary judge had failed to adequately consider the totality principle and the relevance of guideline judgments. The High Court of Australia was tasked with determining whether the primary judge's approach to sentencing was legally sound and whether the Crown's concession regarding the non-parole period was appropriately considered.

The primary legal issues were whether the trial judge had correctly applied the principles of sentencing, particularly the totality principle and the relevance of guideline judgments. The court also had to consider whether the trial judge had erred in the calculation of composite discounts and whether there had been any double counting or inappropriate consideration of special circumstances. The Crown contended that the trial judge had not adequately balanced the totality of the sentences and had failed to properly consider the Crown's concession regarding the non-parole period.

The High Court held that the trial judge had erred in the application of the sentencing principles. The Court found that the trial judge had not adequately considered the totality principle and the relevance of guideline judgments in determining the non-parole period. The Court also found that the trial judge had misapplied the principles regarding the calculation of composite discounts and had failed to avoid double counting. The Crown's concession on the non-parole period was deemed to have been improperly considered, leading to an unjustifiable outcome. The Court concluded that the sentence imposed was manifestly inadequate and ordered a re-sentencing by the Supreme Court of Victoria.

The High Court quashed the appeal, ordered a re-sentencing of Baroudi by the Supreme Court of Victoria and directed that the re-sentencing be conducted in accordance with the principles articulated by the Court. The Court emphasised the importance of correctly applying the principles of sentencing, particularly the totality principle, and the proper consideration of guideline judgments and Crown concessions. The Court also stressed the need to avoid double counting and to ensure that all relevant factors are appropriately balanced in the sentencing process.

Orders