EL-ARJA v Regina - [2009] NSWCCA 8

New South Wales
Court of Criminal Appeal

CITATION: EL-ARJA v REGINA [2009] NSWCCA 8

HEARING DATE(S): Friday 7 November 2008

JUDGMENT DATE:
12 February 2009

JUDGMENT OF: McClellan CJatCL at 1; Hall J at 2; Harrison J at 57

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – grounds for interference - whether sentence manifestly excessive – whether trial judge gave undue weight to the offence – consideration of sentencing guidelines – consideration of relevant principles – deterrence – seriousness of offence – where finding of special circumstances adequately taken into account in sentence – where appeal dismissed

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Attorney-General’s Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Regina v DBN [2005] NSWCCA 435
Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
Regina v Simpson [2001] NSWCCA 534

PARTIES: Belall EL-ARJA
v REGINA

FILE NUMBER(S): CCA No 2007/5640

COUNSEL: Crown: P Calvert
App: P Lange

SOLICITORS: Crown: S Kavanagh
App: Adam Houda

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0223

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 30 November 2007

No 2007/5640

McCLELLAN CJ at CL
HALL J
HARRISON J
THURSDAY 12 FEBRUARY 2009

BELALL EL-ARJA v REGINA

Judgment

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

2 HALL J: The applicant by notice dated 5 June 2008, seeks the leave of this Court to appeal against sentences imposed on him by the District Court of New South Wales on 30 November 2007.

3 He pleaded guilty in the Local Court at Burwood on 15 August 2007 to two counts of robbery whilst armed with an offensive weapon, contrary to s.97(1) of the Crimes Act 1900.

4 In the application for leave to appeal, the following two grounds were relied upon:-

(1) The sentence imposed upon the applicant in respect of the second charge was manifestly excessive, in circumstances where his Honour gave too much weight to the offence to be taken into consideration.

(2) The sentence insufficiently reflected his Honour’s finding of special circumstances.

The offences

5 The charges to which the applicant pleaded guilty were as follows:-

Count 1: Robbery whilst armed – 19 February 2007

Section 97(1) Crimes Act

Count 2: Robbery whilst armed – 19 February 2007

Section 97(1) Crimes Act

Sentences imposed

6 The individual sentences imposed were as follows:-

Count 1:

A fixed term of two years’ imprisonment commencing on 15 March 2007 and expiring on 14 March 2009. [The applicant’s date of arrest was 15 March 2007].

Count 2:

Taking into account Form 1 matter

A term of five years’ imprisonment with a non-parole period of three years commencing on 15 March 2008 and expiring on 14 March 2011.

7 Accordingly, the sentence imposed with respect to Count 2 was accumulated one year…

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 EL-ARJA v Regina

Details

AGLC: El-Arja v Regina [2009] NSWCCA 8
Case: [2009] NSWCCA 8
Decision Date: 12 February 2009

CaseChat Overview and Summary

In the matter of EL-ARJA v Regina, the appellant sought to challenge the sentence imposed by the trial judge, arguing that it was manifestly excessive and that the judge had given undue weight to the nature of the offence. The case was heard by the court of appeal, which was tasked with determining whether the appeal against the sentence was justified. The primary legal issue before the court was whether the sentence imposed was manifestly excessive and whether the trial judge had appropriately balanced the various factors considered in sentencing. The court was also required to determine whether the sentence adequately reflected the special circumstances of the case.

The court examined the sentencing guidelines and relevant principles, considering the gravity of the offence and the need for deterrence. It assessed whether the trial judge had adequately taken into account the special circumstances of the case. The court found that the sentence was not manifestly excessive, as it was within the range of appropriate penalties for the offence committed. The judge had appropriately balanced the factors relevant to sentencing, including the seriousness of the offence and the need for deterrence. The court concluded that the trial judge had adequately considered the special circumstances and that the sentence imposed was appropriate in all the circumstances. Consequently, the appeal was dismissed.

The court of appeal upheld the sentence imposed by the trial judge and dismissed the appeal. The decision underscores the importance of considering all relevant factors in sentencing, including the gravity of the offence, the need for deterrence, and any special circumstances. The court's ruling affirms that an appellate court should only interfere with a sentence if it is manifestly excessive or if the trial judge has failed to properly consider the relevant factors. In this case, the court found that the sentence was not manifestly excessive and that the trial judge had appropriately balanced the relevant considerations.

Orders