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Fayad v R

Fayad v R

Case [2017] NSWCCA 81 28 April 2017

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Fayad v R [2017] NSWCCA 81
Hearing dates: 10 March 2017
Decision date: 28 April 2017
Before: Simpson JA at [1]
Button J at [2]
N Adams J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW – sentence appeal – offence in the nature of a “ram raid” – sole ground of appeal that sentence manifestly excessive – where serious offence on a Form 1 – cases said to be comparable – sentence not unreasonable or plainly unjust – leave granted but appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 59(2), 98, 112(2), 113(2), 148, 154A, 319
Crimes (Appeal and Review) Act) 2001 (NSW), s 68A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 33
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Barbaro v R; Zirilli v R (2014) 305 ALR 323; [2014] HCA 2
Forbes v R [2009] NSWCCA 292
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Johnson v R [2009] NSWCCA 204
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19
Markarian v The Queen [2006] 228 CLR 357; [2005] HCA 25
McDonald v R [2011] NSWCCA 2
McGeown v R [2014] NSWCCA 314
R v Ceissman [2004] NSWCCA 466
R v DBN [2005] NSWCCA 435
R v Guthrie [2002] NSWCCA 77
R v Lenthall [2004] NSWCCA 248
R v Leslie [2009] NSWCCA 203
R v Reilly; R v Smith [2012] NSWCCA 166
Category: Principal judgment
Parties: Wassim Fayad (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr G Scragg (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Birchgrove Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/360367
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 November 2015

Before:

Woodburne SC DCJ

File Number(s):

2013/360367

Judgment

SIMPSON JA: I agree with N Adams J.
BUTTON J: I agree with N Adams J.
N ADAMS J:

Introduction

Wassim Fayad is a 49-year-old man who seeks leave to appeal against the sentence imposed upon him by Woodburne SC DCJ in the District Court at Parramatta on 27 November 2015 for a “ram raid” offence contrary to s 113(2) of the Crimes Act 1900 (NSW). The applicant asked her Honour to take three further offences into account on Forms 1. The offence was committed whilst the applicant was on bail.
The applicant was sentenced to a term of imprisonment of seven years to commence on 29 November 2013 and expire on 28 November 2020, with a non-parole period of four years and nine months to expire on 28 August 2018. An offence contrary to s…

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 Fayad v R

Details

AGLC: Fayad v R [2017] NSWCCA 81
Case: [2017] NSWCCA 81
Decision Date: 28 April 2017

CaseChat Overview and Summary

In this case, the appellant, Fayad, appealed against his sentence following a conviction for his involvement in an offence known as a "ram raid." The appeal was heard in the High Court of Australia. The primary contention was that the sentence imposed by the trial judge was manifestly excessive. The respondent, the Crown, argued that the sentence was appropriate given the gravity of the offence.

The court was required to determine whether the sentence was excessive or manifestly disproportionate to the offence committed. It needed to examine whether the sentence was unreasonable or plainly unjust in light of the principles governing sentencing in such cases. The appellant argued that the sentence should be compared to other cases, which he claimed were comparable, to demonstrate the alleged excessiveness. The Crown countered that the sentence was proportionate to the seriousness of the offence and consistent with sentencing practices for similar crimes.

The High Court found that the sentence was not unreasonable or plainly unjust. It considered the nature of the offence, the role of the appellant, and the sentencing principles applicable. The court held that the sentence was within the range of penalties that could be imposed for such a serious offence. Despite the appellant's arguments and the grant of leave to appeal, the court dismissed the appeal, confirming the original sentence.

Orders