David EID v The Queen - [2008] NSWCCA 255

New South Wales
Court of Criminal Appeal

CITATION: David EID v R [2008] NSWCCA 255
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 October 2008

JUDGMENT DATE:
5 November 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; McCallum J at 43

DECISION: (1) Leave granted to appeal;
(2) Appeal dismissed;
(3) In respect of first count, the applicant is sentenced to imprisonment with a non-parole period of 6 years and 6 months, commencing on 8 August 2006 and expiring on 7 February 2013, and a balance of term of 3 years and 10 months, expiring on 7 December 2016.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - pleas of guilty - armed robbery - knowingly deal in proceeds of crime - conduct dealings to avoid reporting requirements - whether presence of firearm treated as aggravating factor - whether failure to sentence in accordance with s 44(1) Crimes (Sentencing Procedure) Act 1999 - whether manifestly excessive - failure to comply with s 44(1) directive a technical error - sentence re-formulated - appeal dismissed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Financial Transaction Reports Act 1988 (Cth)

CATEGORY: Principal judgment

CASES CITED: R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Huynh v R [2006] NSWCCA 224
Bain v R [2006] NSWCCA 79; 161 A Crim R 36
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: David EID (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2007/5637

COUNSEL: P Lange (Applicant)
G Rowling (Respondent)

SOLICITORS: Adam Houda (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0014

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 30 November 2007

2007/5637

McCLELLAN CJ at CL
SIMPSON J
McCALLUM J
5 November 2008

David EID v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him on 30 November 2007 in the District Court by Williams DCJ following his pleas of guilty to an indictment containing three counts. The counts were:

1. Robbery whilst armed with a dangerous weapon;

2. Knowingly deal in proceeds of crime;

3. Conduct dealings to avoid reporting requirements.

Crimes (Sentencing Procedure) Act

Sentencing Procedure Act

3 The first offence on the indictment is an offence against s 97(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for 25 years; the second is an offence against s 193(B)(1) of the same Act, and carries a maximum penalty of imprisonment for 20 years. The third is an offence against s 31 of the Financial Transaction Reports Act 1988 (Cth) and carries a maximum penalty of imprisonment…

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 David EID v The Queen

Details

AGLC: David EID v The Queen [2008] NSWCCA 255
Case: [2008] NSWCCA 255
Decision Date: 5 November 2008

CaseChat Overview and Summary

In the matter of David EID, the appellant, against The Queen, the respondent, the High Court of Australia heard an appeal against the severity of the sentence imposed by the Supreme Court of Queensland. The appellant pleaded guilty to charges of armed robbery and knowingly dealing in proceeds of crime. The court was tasked with assessing whether the sentence imposed by the Supreme Court was excessive, whether the presence of a firearm should have been considered an aggravating factor, and whether the Supreme Court failed to comply with the sentencing directives set out in section 44(1) of the Crimes (Sentencing Procedure) Act 1999.

The primary legal issues before the court were whether the presence of a firearm during the commission of the armed robbery warranted an increased severity in the sentence, and if the Supreme Court's failure to comply with the statutory sentencing directive was a material error. Additionally, the court needed to determine if the sentence imposed was manifestly excessive and whether any error in the application of section 44(1) constituted a technical error that warranted a re-formulation of the sentence. The appellant argued that the Supreme Court's sentence was excessive and that the failure to comply with the statutory directive was a significant error.

The court found that the presence of a firearm was indeed an aggravating factor that justified an increased severity in the sentence. However, it determined that the Supreme Court's failure to comply with section 44(1) of the Act was a technical error rather than a material one. The court noted that the overall sentence imposed by the Supreme Court was not manifestly excessive when considering the totality of the appellant's criminal conduct. Consequently, the court dismissed the appeal and upheld the original sentence, with the understanding that any technical error in the application of section 44(1) did not necessitate a re-formulation of the sentence.

Orders