Police v Tabbaa

Case [2022] NSWLC 21

Local Court


New South Wales

Medium Neutral Citation: Police v Tabbaa [2022] NSWLC 21
Hearing dates: 6 December 2022
Date of orders: 6 December 2022
Decision date: 15 December 2022
Jurisdiction:Criminal
Before: Stewart LCM
Decision:

It is inappropriate to deal with the proposed Form 1. The Form 1 is refused.

Catchwords:

Appropriateness of Form 1 – guideline judgment re Form 1 matters — effect of Form 1 where substantive offence reaches or exceeds jurisdictional limit – Form 1 incapable of increasing sentence for substantive offence where jurisdictional limit reached – whether Form 1 matters prevent ultimate sentence from reflecting seriousness of the totality of conduct – inability to give effect to the need for retribution and personal deterrence– Court’s supervisory role accorded by s 33(2)(b) Crimes (Sentencing Procedure) Act

Legislation Cited:

Crimes Act 1900 (NSW) s 93G

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5 and 33

Firearms Act 1996 (NSW) ss 7, 39, 65 and 66

Cases Cited:

Attorney General’s Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Chandab v R [2021] NSWCCA 186

C-P v R [2009] NSWCCA 291; (2009) 213 A Crim R 26

Cummins v R [2019] NSWCCA 163

Dale v R [2021] NSWCCA 320

El-Youseff v R [2010] NSWCCA 4

Greaves v R [2020] NSWCCA 140

Laspina v R [2016] NSWCCA 181

Park v The Queen (2021) 273 CLR 303; [2021] HCA 37

R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1

R v Campbell; R v Smith [2019] NSWCCA 1

R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277

R v Thomson; R vHoulton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Raniga v R [2016] NSWCCA 36

RL v R [2018] NSWCCA 274

Stanford v Regina [2007] NSWCCA 73

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category:Procedural rulings
Parties: NSW Police Force (prosecution) and
Mohammad Tabbaa (defendant)
Representation: Sergeant G Lolis, Police Prosecutor
Solicitors: Mr V Vijay
File Number(s): 2022/52588
Publication restriction: NIL

JUDGMENT re appropriatness of form 1

The Charges and the Pleas

  1. The offender was arrested and charged by police on 22 February 2022 with the following offences (H89100788):

Seq.

Offence

Maximum Penalty

1

Possess Unauthorised Pistol contrary to section 7(1) Firearms Act

14 years

2

Not Keep Firearm Safely (pistol) contrary to section 39(1)(a) Firearms Act

2 years or 50 p.u. or both

3

Possess Loaded Firearm in a Public Place contrary to section 93G(1)(a)(i) Crimes Act

10 years

4

Possess Ammunition without Permit contrary to section 65(3) Firearms Act

50 p.u.

5

Possess Unauthorised Pistol contrary to section 7(1) Firearms Act

14 years

6

Not Keep Firearm Safely (pistol)

2 years or 50 p.u. or both

7

Possess Loaded Firearm in a Public Place

10 years

8

Goods in Custody contrary to section 527C(1)(a) Crimes Act

6 months or 5 p.u or both

  1. The matters…

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Details
AGLC
Police v Tabbaa [2022] NSWLC 21
Case
[2022] NSWLC 21
Decision Date

CaseChat Overview and Summary

The case involved Police as the appellant and Tabbaa as the respondent, with the matter being heard in the New South Wales District Court. The dispute centred around the sentencing of Tabbaa, who was facing multiple charges that, when considered together, exceeded the jurisdictional limit for summary disposal. The court was tasked with determining the appropriateness of using a Form 1, which is a sentencing option under the Crimes (Sentencing Procedure) Act, to deal with the charges against Tabbaa. Specifically, the court had to consider whether the Form 1 could be used in a way that would allow the sentence to reflect the seriousness of Tabbaa’s conduct while adhering to the jurisdictional constraints.

The legal issues before the court involved the interpretation and application of the Form 1 mechanism. The primary question was whether the Form 1 could be employed in a manner that would permit the substantive offence, once combined with other charges, to reach or exceed the jurisdictional limit for summary disposal. Additionally, the court had to consider whether the use of a Form 1 could prevent the ultimate sentence from reflecting the gravity of the total conduct, and whether it could address the need for retribution and personal deterrence. The court also needed to balance its supervisory role under section 33(2)(b) of the Act with the statutory requirements and limitations.

The court concluded that the Form 1 was not appropriate in this case. The reasoning behind this decision was that the Form 1 was incapable of increasing the sentence for the substantive offence to a level that would reflect the seriousness of the totality of Tabbaa's conduct once combined with other charges. The court found that the Form 1 could not be used to give effect to the need for retribution and personal deterrence, as the jurisdictional limit would be exceeded, thereby preventing the court from imposing a sentence that fully reflected the gravity of the conduct. Given these considerations, the court exercised its supervisory role to refuse the proposed Form 1, ensuring that the sentencing process remained within the legal framework provided by the Act.

The final orders of the court were that it was inappropriate to deal with the proposed Form 1, and the Form 1 was refused. This decision ensures that the sentencing process for Tabbaa will adhere to the jurisdictional limits and statutory requirements while seeking to appropriately reflect the seriousness of the conduct.

Orders

Orders of the court

It is inappropriate to deal with the proposed Form 1. The Form 1 is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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