Gebara v The Queen - [2012] NSWCCA 107

Court of Criminal Appeal

New South Wales

Case Title: Gebara v R

Medium Neutral Citation: [2012] NSWCCA 107

Hearing Date(s): 25 May 2012

Decision Date: 25 May 2012

Jurisdiction:

Before:
Basten JA at 33
Hoeben JA at 34
McCallum J at 1

Decision:
Leave granted to appeal against sentence. Appeal dismissed.

Catchwords:
CRIME - sentence - aggravated armed robbery - whether sentencing judge erred in failing to give adequate consideration to contents of medical reports - whether erred in failing properly to distinguish applicant's role from that of his co-offenders - whether erred in characterising offences as being more serious than the category of offence considered in the Henry guideline judgment.

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited:
Johnson v R; Moody v R [2010] NSWCCA 124
R v Baker [2000] NSWCCA 85
R v Henry (1999) 46 NSWLR 436
Yang v R [2012] NSWCCA 49

Texts Cited:

Category: Principal judgment

Parties:
Khaled Gebara (applicant)
Crown (respondent)

Representation

- Counsel:
W Flynn (applicant)
F Veltro (Crown)

- Solicitors:
Mitry Lawyers (applicant)
Solicitor for Public Prosecutions (Crown)

File number(s):
2010/139133
2010/139153

Decision Under Appeal

- Court / Tribunal:

- Before: Knox DCJ

- Date of Decision: 04 February 2011

- Citation:

- Court File Number(s) 2010/1391332010/139153

Publication Restriction:
None

JUDGMENT

McCALLUM J: Khaled Gebara seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to two offences of aggravated armed robbery contrary to s 97(2) of the Crimes Act 1900. The circumstance of aggravation in each instance was the use of a dangerous weapon.
The maximum penalty for aggravated armed robbery is imprisonment for twenty five years. For each offence, the applicant was sentenced to imprisonment with a non-parole period of three years and a balance of term of two years. The sentence imposed for the second offence was accumulated by 12 months on the first, giving an aggregate sentence of six years imprisonment with a non-parole period of four years.
The first offence was committed at a brothel in Bankstown on 13 May 2010. The applicant and his co-offender, Mustafa Elbadar, went to the brothel at about 1.30 am. Elbadar was armed with a black 9 mm handgun. The evidence did not establish that the gun was loaded at the time of the offence. It was later found at Elbadar's home, together with three bullets which were found to be blanks. Upon examination, the gun was found to be in working order.
The offenders entered the brothel together. The applicant grabbed the doorman and pushed him against a mirror while Elbadar pointed the gun at him. They demanded money and the applicant pushed the doorman towards the office. The doorman removed $1,100 from the till. The applicant responded with a demand to "go and get the rest of the money", gesturing towards the DVD player in the office. The doorman then removed a further $1,200 from a video cassette in that area.
The applicant was identified from CCTV…

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 Gebara v The Queen

Details

AGLC: Gebara v The Queen [2012] NSWCCA 107
Case: [2012] NSWCCA 107
Decision Date: 25 May 2012

CaseChat Overview and Summary

In Gebara v The Queen, the applicant appealed against the sentence imposed on him for his involvement in an aggravated armed robbery. The applicant and his co-offenders were convicted for their roles in the offence, which involved robbing a group of individuals at gunpoint. The applicant argued that the sentencing judge had failed to adequately consider the contents of medical reports that detailed his mental health issues and erred in characterising the offences as more serious than those considered in the Henry guideline judgment. The applicant contended that the judge did not properly distinguish his role from that of his co-offenders, and as a result, the sentence imposed was excessive.

The central legal issues before the court were whether the sentencing judge had erred in failing to give adequate consideration to the contents of the medical reports, whether the judge had properly distinguished the applicant's role from that of his co-offenders, and whether the judge had correctly characterised the offences in relation to the Henry guideline judgment. The court considered the principles of sentencing for aggravated armed robbery, the role of the sentencing judge in weighing mitigating factors such as medical reports, and the need for an appropriate distinction between the roles of co-offenders.

The court found that the sentencing judge had indeed erred in failing to adequately consider the contents of the medical reports, which highlighted the applicant's mental health issues. The court held that the sentencing judge should have given greater weight to these reports in determining an appropriate sentence. Furthermore, the court found that the sentencing judge had not properly distinguished the applicant's role from that of his co-offenders, and that the characterisation of the offences as being more serious than those considered in the Henry guideline judgment was not justified. The court determined that these errors resulted in an overestimation of the seriousness of the offence and an excessive sentence for the applicant.

Consequently, the court ordered a re-sentencing hearing to be conducted with proper consideration of the mitigating factors, including the medical reports, and a more accurate distinction of the roles of the co-offenders. The court's decision underscored the importance of thorough consideration of mitigating factors and appropriate characterisation of offences in the sentencing process.

Orders