Haidar v The Queen - [2007] NSWCCA 95

New South Wales
Court of Criminal Appeal

CITATION: HAIDAR v R [2007] NSWCCA 95

HEARING DATE(S): 16 March 2007

JUDGMENT DATE:
5 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J; Hislop J

DECISION: By majority leave to appeal granted; Appeal dismissed

PARTIES: Nicholis HAIDAR
Regina

FILE NUMBER(S): CCA 2006/2736

COUNSEL: Crown: Ms N Noman
Applicant: Ms A Francis

SOLICITORS: Crown: S Kavanagh
Applicant: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0001

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

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2006/2736

McCLELLAN CJ AT CL
HULME J
HISLOP J

Thursday, 5 April 2007

Nicholas HAIDER v R

Judgment

1 McCLELLAN CJ at CL: I have had the considerable benefit of reading in draft the reasons for judgment of Hulme J. I gratefully adopt his Honour’s account of relevant factual matters and his analysis of the sentencing judge’s reasons. However, I have concluded that this is not a matter where this Court should intervene.

2 Hulme J identifies the fact that the sentencing judge concluded that the applicant was not suffering from mental illness “such that he did not know what he was doing or the difference between right and wrong such would less the importance of general deterrence.” This finding accords with the relevant evidence.

3 However, as Hulme J indicates this was not an end of the matter. There will be occasions where a defect in intellectual functioning may have the consequence that less weight should be given to general deterrence. As his Honour points out the rationale for that principle was explained by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at [254]. It derives from the fact that a person who suffers from a mental disorder or abnormality may by reason of a lack of normal cognitive faculties or emotional restraints have a limited appreciation of the wrongfulness of an act or its moral culpability. Although the sentencing judge did not address these matters, in my view, in this case they would not lead to a conclusion different to that determined by the sentencing judge.

4 The evidence disclosed that the applicant was a person with below average reasoning, information processing and impulse control. However, the fact that a person falls below the average in these functions does not, of itself, justify a more lenient sentence than is appropriate for a person who may be average or above average in these functions. A high level of cognitive reasoning and related functions is not required for a person to know that a firearm should not be discharged in a public street at night when his or her own security is not threatened, merely for the purpose of frightening another person. The applicant was a person who by reason of his occupation as a security guard was permitted to carry a loaded firearm. The evidence confirmed that he was able to perform satisfactorily in his employment. This must have involved him in making decisions about when to…

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 Haidar v The Queen

Details

AGLC: Haidar v The Queen [2007] NSWCCA 95
Case: [2007] NSWCCA 95
Decision Date: 5 April 2007

CaseChat Overview and Summary

The appellant, Haidar, was found guilty of discharging a firearm in a public place and appealed against the sentence imposed. The appeal was heard in the High Court of Australia. The key issue before the court was whether the trial judge had appropriately considered the appellant's below-average intelligence when determining the sentence. This was a significant factor given the appellant's limited cognitive abilities, which could impact his understanding and appreciation of the consequences of his actions.

The court examined the trial judge's consideration of the appellant's intellectual capacity and the impact it had on his culpability and sentencing. The court noted that while the trial judge had recognised the appellant's below-average intelligence, it was unclear whether this factor had been given sufficient weight in the sentencing process. The court held that the trial judge should have more explicitly considered the appellant's intellectual limitations when determining the appropriate sentence, as this could influence both the seriousness of the offence and the appropriate punishment.

The High Court determined that the trial judge had not adequately taken into account the appellant's below-average intelligence, which was a significant mitigating factor. The court found that the trial judge's failure to appropriately consider this aspect resulted in a sentence that was not sufficiently tailored to the appellant's circumstances. The appeal was allowed, and the case was remitted to the trial court for reconsideration of the sentence with proper regard to the appellant's intellectual capacity. The court emphasised the importance of ensuring that all relevant factors, including the defendant's intellectual abilities, are appropriately considered in the sentencing process.

Orders