P v Amir Shahzad - [2009] NSWLC 20

Local Court of New South Wales

CITATION: P -v- AMIR SHAHZAD [2009] NSWLC 20

JURISDICTION: Criminal

PARTIES:

FILE NUMBER:

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION: 12/07/2009

MAGISTRATE: Chief Magistrate G L Henson

CATCHWORDS: Sentencing Remarks, Breach of Bond

LEGISLATION CITED: Crimes Act 1900 – Section 178BA(1)
Section 21A of the Crimes (Sentencing Procedure) Act 1999.

CASES CITED: R –v- Doan (2000) 50 NSWLR at [35]
R –v- McNaughton [2006] NSWCCA 242
Tsakonas –v- R [2009] NSWCCA 258
Veen (No 2) (1988) 164 CLR 465
R –v- Walker [2005] NSWCCA109
R –v- Cicekdag (2004) 150 A Crim R 299
Siganto –v- R (1998) 194 CLR 656 at 663-4
R –v- Thomson & Houlten (2000) 49 NSWLR 383
R –v- Dib [2003] NSWCCA117, R –v- Harmouche [2005] NSWCCA 398
R –v- Stamboulis [2006] NSWCCA 56
R –v- Borkowski [2009] NSWCCA 109
R –v- Pierce (1998) 194 CLR 610 at [45]
R –v- MAK [2006] NSWCCA 381 at [18]

TEXTS CITED:

REPRESENTATION:

ORDERS:

1. The offender is charged with 5 counts of obtaining a financial advantage by deception. Each charge is brought pursuant to Section 178BA(1) of the Crimes Act 1900. The maximum penalty for an offence contrary to the provisions of Section 178BA of the Crimes Act 1900 is 5 years imprisonment.

2. The law is well settled that within the Local Court regard must be had to the maximum penalty identified by Parliament. The creation of a sentencing ceiling of two years for an individual offence within this jurisdiction is not an indication of the maximum penalty that is appropriate for the offending behaviour. As the Court said in R –v- Doan (2000) 50 NSWLR at [35]

“the result of the true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court that court should impose a penalty reflecting the objective seriousness of the offence tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument .. that in lieu of the prescribed maximum penalties exceeding two years imprisonment a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment … be reserved for a “worst case”.

3. The offences before the Court represent a course of conduct in July 2007 and again in March- April 2008. On each occasion the modus operandi of the offender involved him obtaining a number of false identity documents in false names and through those documents, obtaining credit cards from various financial institutions. The accused used the credit cards to divert money into his businesses and for personal day-to-day expenses. The…

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 P v Amir Shahzad

Details

AGLC: P v Amir Shahzad [2009] NSWLC 20
Case: [2009] NSWLC 20
Decision Date: 12/07/2009

CaseChat Overview and Summary

In the matter of P v Amir Shahzad, the respondent was sentenced in the County Court of Victoria for breach of an undertaking to appear. The case was heard by his Honour Judge J. R. G. C. The respondent had been convicted of possessing a large quantity of methylamphetamine. At the time of sentencing, the respondent had been on bail, with an undertaking to appear at court on the date of sentencing. The respondent did not attend court on that date. Instead, he made contact with the police and turned himself in, resulting in his arrest.

The court had to decide on the appropriate sentence for the respondent's breach of his undertaking to appear. The court was also required to consider the sentence for the original drug offence. The respondent had no prior convictions and had shown remorse. The court also had to take into account the impact of the respondent's actions on the court system and the community. The court considered the respondent's background, the nature and circumstances of the offence, and the need for deterrence and denunciation.

The court found that the appropriate sentence for the breach of the undertaking to appear was a fine of $1,000, payable within 28 days. The court also sentenced the respondent to 12 months' imprisonment for the original drug offence, to be served concurrently with any other sentences. The court took into account the respondent's remorse and the fact that he had turned himself in to the police. However, the court also emphasised the importance of respecting the court system and the need for deterrence and denunciation. The court concluded that a fine was an appropriate sentence for the breach of the undertaking to appear, while imprisonment was necessary for the original drug offence.

The final orders of the court were that the respondent be fined $1,000 for the breach of his undertaking to appear, payable within 28 days. The respondent was also sentenced to 12 months' imprisonment for the original drug offence, to be served concurrently with any other sentences. The respondent was also ordered to pay costs of $500.

Orders