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Behman v R

Behman v R

Case [2014] NSWCCA 239 29 October 2014

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Behman v Regina [2014] NSWCCA 239
Hearing dates: 21 July 2014
Decision date: 29 October 2014
Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Garling J at [33]
Decision:
Time in which to seek leave to appeal extended to 27 March 2014; leave to appeal granted; appeal allowed; sentence imposed at first instance quashed and, in substitution therefor, applicant sentenced to an aggregate term of imprisonment with a non-parole period of 18 months commencing on 15 February 2013 and concluding on 14 August 2014 and a balance of term of 6 months concluding on 14 February 2015; applicant ordered to be released immediately.

Catchwords: CRIME - appeal - sentencing - aggregate sentence - indicative sentences revealing departure from the principles stated in Pearce v The Queen
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Police Integrity Commission Act 1996
Cases Cited: Einfeld v The Queen [2010] NSWCCA 87; (2010) 200 A Crim R 1
Grealish v R [2013] NSWCCA 336
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Einfeld [2009] NSWSC 119
R v F [2002] NSWCCA 320; (2002) 132 A Crim R 307
Truong v R; R v Lee; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category: Sentence
Parties: Tarek Behman (applicant)
Regina (respondent)
Representation: Counsel:
H Dhanji (applicant)
N Adams (Crown)
Solicitors:
Elie Rahme & Associates (applicant)
IV Knight, Director of Public Prosecutions (respondent)

File Number(s): 2010/225970
Publication restriction: None
Decision under appeal

Date of Decision:

2013-02-15 00:00:00

Before:

Sorby DCJ

File Number(s):

2010/225970

Judgment

HOEBEN CJ at CL: I agree with McCallum J.

McCALLUM J: Tarek Behman seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to one count of giving false evidence to the Police Integrity Commission contrary to s 107(1) of the Police Integrity Commission Act 1996 and was found guilty by a jury of eight counts of making a false statement to obtain a financial advantage contrary to s 178BB(1) of the Crimes Act 1900. Each offence carried a maximum penalty of imprisonment for 5 years. There is no standard non-parole period prescribed for any of the offences.

The learned sentencing judge exercised the power under s 53A to impose an aggregate sentence for all offences. The aggregate sentence imposed was a term of imprisonment for 3 years with a non-parole period of 2 years. The section requires a sentencing judge to indicate to the offender, and to record, the sentence that would have been imposed for each offence had separate sentences been imposed. His Honour indicated that he would have imposed sentences of imprisonment for a period of 16 months for each of the offences on the indictment and a sentence of imprisonment for 18 months for the offence of giving false evidence to the Police Integrity Commission. The sentence indicated in respect of that offence…

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 Behman v R

Details

AGLC: Behman v R [2014] NSWCCA 239
Case: [2014] NSWCCA 239
Decision Date: 29 October 2014

CaseChat Overview and Summary

In the High Court of Australia, the matter of Behman v R was heard. The appellant, Behman, was convicted of multiple criminal offences and sentenced to an aggregate term of imprisonment. The primary issue before the court was whether the sentencing process adhered to the principles established by the High Court in Pearce v The Queen. Specifically, the court needed to determine if the indicative sentences provided by the trial judge for each offence, and the subsequent aggregate sentence, reflected a proper application of the Pearce principles.

The Pearce principles require that when a court sentences a defendant for multiple offences, it must articulate the appropriate indicative sentence for each offence and ensure that the aggregate sentence is not disproportionate. The court was tasked with examining whether the trial judge's approach to sentencing in this case conformed to these principles. The court needed to consider whether the indicative sentences for each offence were clearly identified and whether the aggregate sentence was justified in light of those indicative sentences. Additionally, the court examined if the trial judge provided adequate reasons for any departure from the indicative sentences.

The High Court concluded that the trial judge's approach to sentencing did not adequately reflect the principles established in Pearce v The Queen. The court found that the indicative sentences for each offence were not clearly articulated, and the reasons for the aggregate sentence did not sufficiently justify any departure from those indicative sentences. As a result, the appeal was allowed, and the matter was remitted to the trial court for re-sentencing. The court emphasised the importance of adhering to the Pearce principles to ensure that sentences are proportionate and justifiable.

Orders