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Belghar v R

Belghar v R

Case [2013] NSWCCA 245 31 October 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Belghar v R [2013] NSWCCA 245
Hearing dates: 9 October 2013
Decision date: 31 October 2013
Before: Gleeson JA at [1];
R A Hulme J at [85];
Adamson J at [86]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal- appeal against sentence - conviction for kidnapping under s 86(1)(b) of the Crimes Act 1900 - where sentencing judge found that the sentence was of a most serious nature - whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 ss 61, 86
Crimes (Sentencing Procedure) Act 1999 s 44
Cases Cited: Ayshow v R [2011] NSWCCA 240
Charbaji v R [2011] NSWCA 181
Corby v R [2010] NSWCCA 146
Georgopolous v R [2010] NSWCCA 246
Ha v R [2010] NSWCCA 83
Heine v R [2008] NSWCCA 61
House v The King (1936) 55 CLR 499
Ibbs v The Queen [1987] HCA 46; 163 CLR 447
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Nguyen v R [2011] NSWCCA 127
R v Cage [2006] NSWCCA 304
R v Dodd (1991) 57 A Crim R 349
R v DRR [2004] NSWCCA 126
R v Gebrail (Unreported, NSW Court of Criminal Appeal, Mahoney JA, 18 November 1994)
R v Geddes (1936) 36 SR (NSW) 554
R v Koloamatangi [2011] NSWCAA 288
R v Lee [2003] NSWCCA 391
R v Newell [2004] NSWCCA 183
R v Pearson [2004] NSWCCA 129
Sheen v R [2011] NSWCCA 259
Sivell v R [2009] NSWCCA 286
Turner v R [2011] NSWCCA 189
Williams v R; Saunders v R [2006] NSWCCA 33
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Ismail Belghar (Applicant)
Regina (Crown)
Representation: Counsel:
Ms A Francis with Ms C Wasley (Applicant)
Ms S Herbert (Respondent Crown)
Solicitors:
Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/326053
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Citation:

R v Belghar

Date of Decision:

2012-10-19 00:00:00

Before:

Zahra DCJ

File Number(s):

2009/326053

Judgment

GLEESON JA: Ismail Belghar (the applicant) applies for leave to appeal against one of the sentences imposed on him by his Honour Judge Zahra in the District Court at Sydney on 19 October 2012.

The applicant had pleaded guilty to two offences when the matter was listed for trial on 8 May 2012, namely:

(1) that the applicant did detain the complainant without her consent and with the intention of obtaining an advantage, namely to intimidate the complainant contrary to s 86(1)(b) of the Crimes Act 1900 (Count 2) - for which the maximum penalty prescribed is imprisonment for 14 years; and

(2) on the same day, the applicant did assault the complainant contrary to s 61 of the Crimes Act (Count 3) - for which the maximum penalty prescribed…

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 Belghar v R

Details

AGLC: Belghar v The Queen [2013] NSWCCA 245
Case: [2013] NSWCCA 245
Decision Date: 31 October 2013

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the appellant Belghar challenged the sentence imposed on him following his conviction for kidnapping under section 86(1)(b) of the Crimes Act 1900. The nature of the dispute centred around the severity of the sentence, with Belghar contending that it was manifestly excessive. The court was tasked with determining whether the sentence imposed by the sentencing judge was just and appropriate, given the circumstances of the offence.

The legal issues before the court involved assessing the proportionality of the sentence in relation to the seriousness of the crime. The appellant argued that the sentence was disproportionate and excessive, given the specific facts and circumstances of the case. The court had to consider the principles of sentencing, including the need for deterrence, denunciation, and the protection of society, while also taking into account the individual circumstances of the offender and the offence.

The court examined the principles of sentencing and the specific facts of the case, ultimately concluding that the sentence imposed was not manifestly excessive. The court recognised the seriousness of the offence, which involved the use of violence and intimidation, and found that the sentence was commensurate with the gravity of the crime. The appeal was dismissed, and the original sentence was upheld. The court found that the sentencing judge had appropriately balanced the various considerations in reaching the sentence imposed.

Orders