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Nasrallah v R

Nasrallah v R

Case [2021] NSWCCA 207 1 September 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Nasrallah v R [2021] NSWCCA 207
Hearing dates: 14 July 2021
Date of orders: 01 September 2021
Decision date: 01 September 2021
Before: Bell P at [1]
Price J at [30]
Hamill J at [56]
Decision:
(1) Grant leave to appeal.
(2) Appeal allowed.
(3) Vary the applicant’s sentence to commence on 12 December 2020 so that she will be eligible for release to parole on 12 April 2022 and the total sentence expires on 11 September 2023.
(4) Appeal otherwise dismissed.

Catchwords:
CRIMINAL LAW – sentencing – armed robbery – guideline judgment – twenty year old offender with no convictions – history of trauma and neglect – whether sentencing Judge erred in application of “Bugmy principles” – where the applicant was a victim of violence as a teenager – relevance to assessment of moral culpability – impacts of childhood sexual abuse – resort to drugs – error as to commencement date of sentence – sentence varied – appeal otherwise dismissed by majority

Legislation Cited:
Crimes Act 1900 (NSW), ss 97(1), 195
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44, 47
Criminal Appeal Act1912 (NSW), s 6(3)
Criminal Procedure Act1986 (NSW), ss 44, 166
Law Enforcement (Powers and Responsibilities) Act2002 (NSW), s 17

Cases Cited:
BT v R [2019] NSWCCA 147
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Clarke v R [2015] NSWCCA 232
DBW (a child) v Western Australia [2011] WASCA 206
Devaney v R [2012] NSWCCA 285 at [88]
Douglas v The Queen (1995) 56 FCR 465; [1995] FCA 411
DPP (Vic) v Hodgson [2019] VSCA 49
DPP (Vic) v Macarthur [2019] VSCA 71
DPP v Hermann [2021] VSCA
Dungay v R [2020] NSWCCA 209
Gibson v Regina [2019] NSWCCA 221
Hanna v R [2020] NSWCCA 125 at [86]-[88]
Hordern v R [2019] NSWCCA 138
Hoskins v R [2021] NSWCCA 169
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ingrey v R [2016] NSWCCA 31
IS v Regina [2017] NSWCCA 116
JL v R [2014] NSWCCA 130
Kennedy v The Queen [2010] NSWCCA 260
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Newman v R [2021] NSWCCA 101
O’Sullivan v R [2019] NSWCCA 261
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
Park v R [2020] NSWCCA 90
Park v The Queen [2021] HCA Trans 75
Perkins v The Queen [2018] NSWCCA 62
R v AB (unreported, Court of Criminal Appeal (NSW), 7 July 1997)
R v Anthony George Reid (unreported, Court of Criminal Appeal (NSW), 24 July 1998)
R v AWF (2000) 2 VR 1; [2000] VSCA 172
R v BS-X [2021] ACTSC 160.
R v Cattell (2019) 280 A Crim R 502; [2019] NSWCCA 297
R v CDH [2002] NSWCCA 103
R v Dungay

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 Nasrallah v R

Details

AGLC: Nasrallah v R [2021] NSWCCA 207
Case: [2021] NSWCCA 207
Decision Date: 01 September 2021

CaseChat Overview and Summary

The case of Nasrallah v R involved an appeal against a sentence for armed robbery. The applicant, who had no prior convictions and was twenty years old at the time of the offence, had been sentenced by the sentencing judge to six years and three months imprisonment. The applicant argued that the sentencing judge had erred in applying the principles set out in the Bugmy decision, particularly in failing to adequately consider the mitigating effects of the applicant's history of trauma and neglect, which included being a victim of violence as a teenager and suffering from childhood sexual abuse. The applicant also claimed there was an error in the commencement date of the sentence. The appeal was heard by a majority of the court, who varied the sentence but dismissed the appeal on all other grounds.

The primary legal issues before the court were whether the sentencing judge had correctly applied the principles set out in the Bugmy decision and whether there were errors in the sentence's commencement date. The applicant argued that the sentencing judge had not sufficiently considered the mitigating factors of the applicant's history of trauma, neglect, and victimisation. The court had to determine whether these factors were appropriately taken into account and whether the sentence imposed was just and appropriate given the circumstances.

The court, in its majority decision, found that while the sentencing judge had considered the mitigating factors, there had been an error in the application of the Bugmy principles. The court found that the applicant's history of trauma and neglect should have been given more weight in assessing the applicant's moral culpability. However, the court also noted that the sentence was not manifestly excessive and that the applicant's resort to drugs and criminal behaviour were significant factors in the sentencing decision. The court varied the commencement date of the sentence but otherwise dismissed the appeal.

Orders