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Kaddour v The Queen

Kaddour v The Queen

Case [2017] NSWCCA 294 1 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kaddour v R [2017] NSWCCA 294
Hearing dates: 24 November 2017
Date of orders: 01 December 2017
Decision date: 01 December 2017
Before: Leeming JA [1];
Fullerton J [12];
Adamson J [13]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – whether offending on parole erroneously taken into account on assessment of objective seriousness – HELD – no error demonstrated – sentencing judge adopted sequence of relevant matters submitted by parties – finding of objective seriousness preceded mention of fact that offence committed while applicant on conditional liberty – need to read reasons fairly and as a whole
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B
Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 26
Cases Cited: Boney v R [2015] NSWCCA 291
C G Maloney Pty Ltd v Noon [2011] NSWCA 397
Chiro v The Queen [2017] HCA 37
Commonwealth v Bank of New South Wales (1949) 79 CLR 497
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
House v The King (1936) 55 CLR 499
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Osborne v R; R v Osborne [2017] NSWCCA 11
Sharma v R [2017] NSWCCA 85
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14
Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Category: Principal judgment
Parties: Kalid Kaddour (Applicant)
Regina (Respondent)
Representation:
Counsel:
I Lloyd QC (Applicant)
T Smith (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/133187
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 February 2017

Before:

Flannery DCJ

File Number(s):

2009/133187

Judgment

LEEMING JA: I have had the advantage of reading the judgment of Adamson J in draft. I agree with the orders proposed by her Honour, and, subject to what follows, which is principally by way of elaboration, with her reasons.
Adamson J has reproduced the portion of the reasons given by the primary judge which contain the critical sentence “The offence is aggravated as the offender was on parole when he committed it.” The primary judge structured her reasons by reference to an analysis of the objective seriousness of the offence, and then the personal circumstances of the offender. The disputed sentence occurs immediately after statements directed to objective seriousness, and immediately before statements directed to the applicant’s personal circumstances. For the applicant, it was accepted that if that sentence formed part of her Honour’s assessment of the circumstances subjective to the offender, the appeal should be dismissed. Conversely, for the Crown it was accepted that if that sentence formed part of the assessment of the objective seriousness of the offence, there was appellable error. I proceed on that agreed basis.
Senior counsel for the applicant said that his point was “a simple point”, namely, that the position…

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 Kaddour v The Queen

Details

AGLC: Kaddour v The Queen [2017] NSWCCA 294
Case: [2017] NSWCCA 294
Decision Date: 01 December 2017

CaseChat Overview and Summary

In the case of Kaddour v The Queen, the applicant appealed against his conviction for an offence committed while he was on parole. The High Court of Australia was required to determine whether the sentencing judge erred in considering the fact that the applicant was on parole when the offence was committed as part of the assessment of the objective seriousness of the offence. The applicant argued that the fact that he was on parole should not have been considered as it was erroneously taken into account when assessing the objective seriousness of the offence.

The court considered whether the sentencing judge had erred in considering the fact that the offence was committed while the applicant was on parole. The court noted that the sentencing judge had adopted a sequence of relevant matters submitted by the parties, which included the fact that the offence was committed while the applicant was on parole. However, the court found that the finding of objective seriousness preceded the mention of the fact that the offence was committed while the applicant was on parole. The court held that the reasons needed to be read fairly and as a whole and that there was no error demonstrated in the sentencing judge's assessment of the objective seriousness of the offence.

The court held that the sentencing judge had not erred in considering the fact that the offence was committed while the applicant was on parole as part of the assessment of the objective seriousness of the offence. The court found that the reasons needed to be read fairly and as a whole and that the finding of objective seriousness preceded the mention of the fact that the offence was committed while the applicant was on parole. The appeal was dismissed.

No orders were made as the appeal was dismissed.

Orders