Legal Research
Cases
Jibran v R

Jibran v R

Case [2020] NSWCCA 86 1 May 2020

Appeal

Sentencing

Aggravated Kidnapping

Driving Whilst Disqualified

Procedural Fairness

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Jibran v R [2020] NSWCCA 86
Hearing dates: 26 February 2020
Date of orders: 01 May 2020
Decision date: 01 May 2020
Before: Leeming JA at [1]
Johnson J at [2]
Harrison J at [214]
Decision:
1. Grant the Applicant leave to appeal against sentence.
2. The aggregate sentence imposed at the Parramatta District Court on 6 February 2019 is quashed.
3. The Applicant is sentenced to an aggregate term of imprisonment for three years and 10 months comprising a non-parole period of two years and 10 months commencing on 2 July 2018 and expiring on 1 May 2021 with a balance of term of one year commencing on 2 May 2021 and expiring on 1 May 2022.
4. The earliest date upon which the Applicant will be eligible for release on parole is 2 May 2021.

Catchwords: APPEAL – sentence – offences of aggravated kidnapping (causing actual bodily harm), driving whilst disqualified and damaging property – applicant forcibly detained victim in his car after she made a “000” call during an argument – applicant threw victim’s phone out of the car window and broke it – fearful victim leaped from moving car – offence of driving whilst disqualified the next day – whether sentencing Judge erred in not providing reasons as to objective seriousness of each offence – where sentencing Judge delivered ex tempore remarks on sentence – error not established – whether sentencing Judge erred, by taking into account an irrelevant consideration, in finding applicant to not be genuinely remorseful – where applicant’s history of intimate partner violence was an overlapping issue – error not established – whether sentencing Judge erred by failing to take into account a relevant consideration in deciding whether to find special circumstances – where sentencing Judge commenced aggregate sentence on incorrect date – error established – whether sentencing Judge erred in failing to afford the Applicant procedural fairness in whether to find special circumstances – error not established – whether sentencing Judge erred in finding that the driving whilst disqualified offence occurred on the night of the applicant’s other offences – error established – consideration of objective gravity of aggravated kidnapping offence – consideration of factors relevant to sentence for driving whilst disqualified – objective gravity of offence and history of driving whilst disqualified – applicant re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Road Transport Act 2013
Cases Cited: Allen v R [2010] NSWCCA 47
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bott v R [2012] NSWCCA 191
Caristo v R [2011] NSWCCA 7
DJ v R [2017] NSWCCA 319
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
GP v R [2017] NSWCCA 200
Hei…

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 Jibran v R

Details

AGLC: Jibran v The Queen [2020] NSWCCA 86
Case: [2020] NSWCCA 86
Decision Date: 01 May 2020

CaseChat Overview and Summary

In the case of Jibran v R, the applicant appealed against his sentence for multiple offences, including aggravated kidnapping causing actual bodily harm, driving while disqualified, and damaging property. The applicant forcibly detained the victim in his car during an argument, causing her to leap from the moving car in fear after he threw her phone out of the window, breaking it. The following day, the applicant was found to be driving while disqualified. The sentencing judge was called upon to determine the objective seriousness of each offence, the applicant's level of remorse, and whether special circumstances applied. The judge delivered ex tempore remarks on the sentence, which the applicant argued were flawed.

The court examined whether the sentencing judge erred in not providing adequate reasons for the objective seriousness of each offence. The court concluded that no error was established, as the judge's remarks were sufficient to understand the reasoning. The court also considered whether the sentencing judge had erred in finding the applicant to not be genuinely remorseful. The applicant's history of intimate partner violence was relevant and did not constitute an irrelevant consideration. The court found no error in this regard. However, the court did find an error in the sentencing judge's commencement of the aggregate sentence on an incorrect date. The court also established an error in the sentencing judge's finding that the driving while disqualified offence occurred on the same night as the other offences.

The court considered the objective gravity of the aggravated kidnapping offence, the factors relevant to the sentence for driving while disqualified, and the applicant's history of driving while disqualified. The court found no error in the sentencing judge's consideration of special circumstances but acknowledged the procedural error in not providing adequate reasons for the sentence. The applicant was re-sentenced, with the court ensuring that the aggregate sentence commenced on the correct date.

Orders