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Nasser v R

Nasser v R

Case [2017] NSWCCA 104 24 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nasser v R [2017] NSWCCA 104
Hearing dates: 24 April 2017
Decision date: 24 May 2017
Before: Hoeben CJ at CL at [1]
Price J at [2]
Fullerton J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – dishonestly damaging property by fire with a view to obtaining a gain for another – joint criminal enterprise – subjective circumstances – statutory aggravating factors – general deterrence – specific deterrence – offence committed in company as part of a planned criminal activity without regard for public safety – extent of damage to building bearing on objective seriousness of offence – whether emphasis on level of awareness (and actual materialisation) of risk to public safety converted sentencing judge’s assessment of applicant’s state of mind regarding public safety into de facto extension of criminal liability – whether sentence suggestive of overstatement or wrong assessment of applicant’s culpability
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Lowndes v R (1999) 195 CLR 665; [1999] HCA 29
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Dinos [1999] NSWCCA 208
R v Khan [2016] NSWSC 1073
R v Taula (2015) 248 A Crim R 502; [2015] NSWCCA 8
Saleib [2005] NSWCCA 85
Wong v R (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Ibrahim Nasser (Applicant)
The Crown (Respondent)
Representation:
Counsel:
T Game SC (Applicant)
H Roberts (Crown)
Solicitors:
Lawyers Corp Pty Limited (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/211299
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 November 2015

Before:

Garling ADCJ

File Number(s):

2014/211299

Judgment

HOEBEN CJ at CL: I agree with Fullerton J.
PRICE J: I agree with Fullerton J.
FULLERTON J: The applicant, Ibrahim Nasser, seeks leave to appeal against the sentence imposed on him in the District Court on 16 November 2015 following his plea of guilty, entered in the Local Court, to one count of dishonestly damaging property by fire with a view to obtaining a gain for another contrary to s 197(1)(b) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 14 years imprisonment.
The applicant was sentenced to 6 years and 9 months imprisonment with a non-parole period of 4 years and 5 months commencing on 17 July 2014 and expiring on 16 April 2021. The non-parole period is due to expire on 16 December 2018.
The sole ground of appeal is that the sentence is manifestly excessive.

The facts found for sentencing purposes

A statement of…

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 Nasser v R

Details

AGLC: Nasser v The Queen [2017] NSWCCA 104
Case: [2017] NSWCCA 104
Decision Date: 24 May 2017

CaseChat Overview and Summary

The applicant, Nasser, appealed against the sentence imposed following his conviction for dishonestly damaging property by fire with the intent to obtain a gain for another, in company, as part of a planned criminal activity. The trial judge found Nasser to be a secondary party to a joint criminal enterprise that involved setting fire to a building. The case was heard in the High Court of Australia, which was required to consider whether the sentence was manifestly excessive.

The central legal issue was whether the sentence was manifestly excessive in light of the applicant's culpability and the statutory aggravating factors. The court considered the objective seriousness of the offence, including the extent of damage to the building, the disregard for public safety, and the planned nature of the criminal activity. The court also examined the sentencing judge's assessment of the applicant's state of mind regarding public safety and whether this influenced the overall sentence. Additionally, the court assessed the need for general and specific deterrence.

The court found that the sentencing judge had appropriately considered the statutory aggravating factors, including the extent of damage to the building and the disregard for public safety. However, the court was concerned that the sentencing judge's assessment of the applicant's state of mind regarding public safety may have inadvertently extended the criminal liability beyond what was warranted. The court held that while the sentence reflected the serious nature of the offence, there was a risk that the emphasis on the level of awareness (and actual materialisation) of risk to public safety had led to an overstatement of the applicant's culpability. Consequently, the court found the sentence to be manifestly excessive and ordered a retrial for sentencing.

Orders