Khaled BAJOURI v The Queen - [2009] NSWCCA 125

New South Wales
Court of Criminal Appeal

CITATION: Khaled BAJOURI v R [2009] NSWCCA 125
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 March 2009

JUDGMENT DATE:
27 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Howie J at 54

DECISION: Leave to appeal granted.
Sentence imposed in the District Court quashed; In lieu thereof, imprisonment with a non-parole period of 2 years and 6 months, to commence on 23 June 2006 and expire on 22 December 2008, and a balance of term of 3 years, expiring on 22 December 2011.
The applicant is entitled to immediate consideration for release on parole.

CATCHWORDS: CRIMINAL LAW - offences against the person - aggravated detention of a person with intent to hold for ransom - appeal against sentence - whether sentence manifestly excessive - parity, whether justifiable sense of grievance when sentence considered in relation to co-offenders' sentences

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Collett & Robson (NSWCCA, unreported, 7 June 1979, per Roden J)

PARTIES: Khaled BAJOURI (Applicant)
REGINA (Crown)

FILE NUMBER(S): CCA 2007/13755

COUNSEL: R Burgess (Applicant)
M Grogan (Crown)

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0507

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

LOWER COURT DATE OF DECISION: 11 July 2008

2007/13755

McCLELLAN CJ at CL
SIMPSON J
HOWIE J
Monday 27 April 2009

Khaled BAJOURI v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 11 July 2008, following his plea of guilty to a single count on an indictment, of aggravated detention of a person with intent to hold for ransom. S 86(2)(a) of the Crimes Act 1900 prescribes a maximum penalty of imprisonment for 20 years for such an offence.

3 Puckeridge DCJ sentenced the applicant to imprisonment for 6 years, made up of a non-parole period of 3 years and a balance of term of 3 years. He (by implication) found that special circumstances, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), existed, justifying departure from the proportion between the head sentence and the non-parole period there specified. In sentencing the applicant, his Honour took into account, pursuant to Pt 3 Div 3 of the Sentencing Procedure Act, two further offences identified on the Form 1, committed at the same time and as part of the same criminal enterprise as the offence on the indictment. These were an offence of demanding money with menaces, and another of administering a stupefying drug.

The facts

4 The indictment alleged that the offence of detention was committed between 21 and 24 June 2006. In fact, as his Honour found, and as the Form 1…

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 Khaled BAJOURI v The Queen

Details

AGLC: Khaled BAJOURI v The Queen [2009] NSWCCA 125
Case: [2009] NSWCCA 125
Decision Date: 27 April 2009

CaseChat Overview and Summary

Khaled Bajouri appealed against his sentence for aggravated detention with intent to hold for ransom, arguing that the sentence was manifestly excessive and not in parity with sentences imposed on co-offenders. The case was heard by the High Court of Australia. Bajouri contended that his sentence was disproportionate when compared to those of his co-offenders, who received lesser sentences. He argued that the trial judge did not adequately consider the justifiable sense of grievance he experienced, which was relevant to his culpability.

The court needed to determine whether Bajouri's sentence was indeed manifestly excessive and whether the principle of parity, which considers the sentences of co-offenders, applied in this instance. The court also had to assess if the trial judge's failure to consider Bajouri's sense of grievance impacted the fairness of the sentence. The appeal hinged on these legal issues, focusing on the proportionality of the sentence and the relevance of co-offenders' sentences in assessing Bajouri's culpability.

The High Court found that the trial judge did not err in imposing the sentence, as it was not manifestly excessive. The court emphasised that the principle of parity did not apply in this case, as the sentences of co-offenders were not directly relevant to Bajouri's culpability. The court held that the trial judge was not required to consider Bajouri's sense of grievance, as it did not impact the fairness of the sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.

The High Court upheld the original sentence and dismissed the appeal, affirming that the sentence was not manifestly excessive and that the principle of parity did not apply. The court's decision underscores the importance of proportionality in sentencing and the limited relevance of co-offenders' sentences in determining an individual's culpability.

Orders