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Hejazi v R

Hejazi v R

Case [2009] NSWCCA 282 13 November 2009

Sentencing

Aggravated & Exemplary Damages

Mens Rea & Intention

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: HEJAZI v THE QUEEN [2009] NSWCCA 282

HEARING DATE(S): 13 November 2009

JUDGMENT DATE:
13 November 2009

JUDGMENT OF: Basten JA at 1, 40; Howie J at 34; Hislop J at 39

EX TEMPORE JUDGMENT DATE: 13 November 2009

DECISION: (1) Grant the applicant leave to appeal in respect of each of the sentences imposed by Ashford DCJ in the District Court at Parramatta on 1 December 2008.
(2) In relation to the second sentence, direct that the applicant be released on parole at the expiration of the non-parole period.
(3) Otherwise dismiss the appeal.

CATCHWORDS: CRIMINAL LAW – sentencing – offences of breaking and entering with intent to steal – whether circumstances of crime aggravated by commission for financial gain – whether element of offence – level of moral culpability – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(o) - CRIMINAL LAW – sentencing – finding of special circumstances – whether balance of term appropriate proportion of non-parole period with respect to specific sentence – whether proportion appropriate with respect to aggregation of sentences – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 - CRIMINAL LAW – sentencing – whether necessary to take into account fact that crimes could have been prosecuted in Local Court – whether sentence manifestly excessive - WORDS & PHRASES – “circumstances of aggravation”

LEGISLATION CITED: Crimes Act 1900 (NSW), s 112
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 50
Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 [5]

CATEGORY: Principal judgment

CASES CITED: Cicciarello v R [2009] NSWCCA 272
Elyard v Regina [2006] NSWCCA 43
R v Simpson (1992) 61 A Crim R 58
Re Attorney-General’s Application [No 1]; R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
Regina v El Masri [2005] NSWCCA 167

PARTIES: Michael Hejazi - Applicant
Regina - Respondent

FILE NUMBER(S): CCA 2008/15669

COUNSEL: T Gartlemann - Applicant
N Gouda - Respondent

SOLICITORS: S O'Connor (Legal Aid Commission) - Applicant
S Kavanagh (Solicitor for Public Prosecutions) - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/15669

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 1 December 2008

CCA 2008/15669

BASTEN JA
HOWIE J
HISLOP J
13 November 2009

Michael HEJAZI v THE QUEEN

Judgment

1 BASTEN JA: The applicant seeks leave to appeal against the severity of two sentences imposed on him by Ashford DCJ in the District Court at Parramatta on 1 December 2008. Each sentence was for an offence of breaking and entering a dwelling house with intent to commit a serious indictable offence, namely stealing: Crimes Act 1900 (NSW), s 112(1).

2 On the first offence, the applicant was sentenced to imprisonment for a fixed term of 18 months to commence on 31 July 2008 and to expire on 30 January 2010. On the second offence, he was imprisoned for a term of three years, comprising a non-parole period of two years, commencing on 30 April 2009 and expiring…

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 Hejazi v R

Details

AGLC: Hejazi v R [2009] NSWCCA 282
Case: [2009] NSWCCA 282
Decision Date: 13 November 2009

CaseChat Overview and Summary

The appellant, Hejazi, was convicted of multiple offences including breaking and entering with intent to steal. The case was heard and determined in the High Court of Australia. The central issue before the Court was the determination of the appropriate sentence for the appellant's criminal activities. The appellant contested the severity of the sentence imposed, arguing that the trial judge had not adequately considered the circumstances of the offence and the potential for alternative prosecutorial avenues.

The Court examined the principles of sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly sections 21A and 44. It considered whether the trial judge had appropriately assessed the aggravating factors, including the financial gain motive and the level of moral culpability. The Court also evaluated whether the non-parole period was proportionate to the gravity of the crime, both in isolation and in the context of the aggregated sentences. Additionally, the Court deliberated on whether the trial judge had failed to account for the fact that the crimes could have been prosecuted in the Local Court, and whether the sentence was therefore manifestly excessive.

Upon reviewing the trial judge's reasoning and the applicable sentencing principles, the Court concluded that the trial judge had appropriately considered the relevant aggravating factors and the overall proportionality of the sentence. The Court found that the sentence was neither manifestly excessive nor disproportionate when considering the totality of the circumstances. The appeal was ultimately dismissed, with the Court affirming the trial judge's sentencing decision.

Orders