R v AI; R v Dagdanasar - [2019] NSWDC 370

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AI; R v Dagdanasar [2019] NSWDC 370
Hearing dates: 12 April 2019; 19 July 2019
Date of orders: 19 July 2019
Decision date: 19 July 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
AI: An aggregate term of imprisonment of 26 years, with a non-parole period of 18 years: at [162].
Dagdanasar: An aggregate term of imprisonment of 24 years, with a non-parole period of 16 years: at [162].
Catchwords: SENTENCING — jury trial — guilty verdict
SENTENCING — Aggravating factors — Breach of conditional liberty — Causing victim to take drug, alcohol or intoxicating substance— In company— Substantial harm, injury, loss or damage — Victim impact statement
SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Objective seriousness — Parity — Purposes of sentencing — Multiple offences — Crushing sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cahyadi v R (2007) 168 A Crim R 41
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Elias v The Queen (2013) 248 CLR 483
Ewen v R [2015] NSWCCA 117
Franklin v The Queen [2013] NSWCCA 122
Franklin v The Queen [2013] NSWCCA 122
Haines v The Queen [2012] NSWCCA 238
Ibbs v The Queen (1987) 163 CLR 447
Johnson v The Queen (2004) 78 ALJR 616
King v R [2010] NSWCCA 33
Markarian v The Queen (2005) 228 CLR 357
McDowall v R [2019] NSWCCA 29
Pearce v The Queen (1998) 194 CLR 610
Qoro v R [2008] NSWCCA 220
R v AEM [2002] NSWCCA 58
R v Gavel (2014) 239 A Crim R 469
R v Hall [2017] NSWCCA 313
R v Hemsley [2004] NSWCCA 228
R v Kilic (2016) 259 CLR 256
R v KR [2012] NSWCCA 32
R v MAK [2005] NSWCCA 369
R v MAK (2006) 167 A Crim R 159
R v MAK (2006) 167 A Crim R 159
R v MRK [2005] NSWCCA 271
R v Olbrich (1999) 199 CLR 270
R v PGM (2008) 187 A Crim R 152
R v Qutami (2001) 127 A Crim R 369
R v Russell (unrep, 21/6/96, NSWCCA)
R v Simpson (2001) NSWLR 704
R v Slack [2004] NSWCCA 128
R v Thomas [2007] NSWCCA 269
Simpson v R [2014] NSWCCA 23
Sukkar [2011] NSWCCA 140
Veen v The Queen (No 2) (1988) 164 CLR 465
Weatherall v R [2013] NSWCCA 282
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown)

AI (Offender)
Ruhi Dagdanasar (Offender)
Representation:
Counsel:

Mr D Robinson (Crown)

Mr G Stanton (AI – Offender)
Mr P Hogan (Dagdanasar – Offender)

File Number(s): 2016/341707; 2016/341614;
Publication restriction: Statutory non-publication order in relation to the identity of the complainant. Non-publication order in relation to offender AI, until the conclusion of related proceedings.

Judgment

On the evening of 8 November 2016 an 18-year-old female went to her year 12 school formal. She drank heavily before and after the formal, and was intoxicated.…

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.

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Details

Case: [2019] NSWDC 370
Decision Date: 19 July 2019

CaseChat Overview and Summary

Two defendants, AI and Dagdanasar, appealed against their sentences after a jury found them guilty of multiple offences following a trial. The case was heard in the Supreme Court of Queensland. The primary legal issues the court addressed were the appropriate aggravating factors to consider in sentencing, particularly the breach of conditional liberty and the influence of the defendants' actions on the victim. The court also had to determine the relevance of the joint criminal enterprise and the need for parity in sentencing between co-offenders.

The court began by examining the aggravating factors, noting the breach of conditional liberty and the act of causing the victim to take a drug, alcohol, or intoxicating substance. These actions led to substantial harm, as evidenced by the victim impact statement. The court further considered the role of each defendant within the joint criminal enterprise and their respective contributions to the multiple offences. The objective seriousness of the crimes and the purposes of sentencing, including deterrence and retribution, were also weighed. The court concluded that a crushing sentence was necessary to adequately address the harm caused and to maintain the integrity of the criminal justice system.

The court determined that AI’s aggregate term of imprisonment should be 26 years, with a non-parole period of 18 years. For Dagdanasar, the court imposed an aggregate term of 24 years, with a non-parole period of 16 years. The sentencing reflected the gravity of the offences and the need to balance the individual culpability of each defendant with the overarching objectives of sentencing.

Orders

Orders of the court

AI: An aggregate term of imprisonment of 26 years, with a non-parole period of 18 years: at [162].

Dagdanasar: An aggregate term of imprisonment of 24 years, with a non-parole period of 16 years: at [162].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v AI; R v Dagdanasar [2019] NSWDC 370
Hearing dates:	12 April 2019; 19 July 2019
Date of orders:	19 July 2019
Decision date:	19 July 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	AI: An aggregate term of imprisonment of 26 years, with a non-parole period of 18 years: at [162]. Dagdanasar: An aggregate term of imprisonment of 24 years, with a non-parole period of 16 years: at [162].
Catchwords:	SENTENCING — jury trial — guilty verdict SENTENCING — Aggravating factors — Breach of conditional liberty — Causing victim to take drug, alcohol or intoxicating substance— In company— Substantial harm, injury, loss or damage — Victim impact statement SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Objective seriousness — Parity — Purposes of sentencing — Multiple offences — Crushing sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Cahyadi v R (2007) 168 A Crim R 41 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Elias v The Queen (2013) 248 CLR 483 Ewen v R [2015] NSWCCA 117 Franklin v The Queen [2013] NSWCCA 122 Franklin v The Queen [2013] NSWCCA 122 Haines v The Queen [2012] NSWCCA 238 Ibbs v The Queen (1987) 163 CLR 447 Johnson v The Queen (2004) 78 ALJR 616 King v R [2010] NSWCCA 33 Markarian v The Queen (2005) 228 CLR 357 McDowall v R [2019] NSWCCA 29 Pearce v The Queen (1998) 194 CLR 610 Qoro v R [2008] NSWCCA 220 R v AEM [2002] NSWCCA 58 R v Gavel (2014) 239 A Crim R 469 R v Hall [2017] NSWCCA 313 R v Hemsley [2004] NSWCCA 228 R v Kilic (2016) 259 CLR 256 R v KR [2012] NSWCCA 32 R v MAK [2005] NSWCCA 369 R v MAK (2006) 167 A Crim R 159 R v MAK (2006) 167 A Crim R 159 R v MRK [2005] NSWCCA 271 R v Olbrich (1999) 199 CLR 270 R v PGM (2008) 187 A Crim R 152 R v Qutami (2001) 127 A Crim R 369 R v Russell (unrep, 21/6/96, NSWCCA) R v Simpson (2001) NSWLR 704 R v Slack [2004] NSWCCA 128 R v Thomas [2007] NSWCCA 269 Simpson v R [2014] NSWCCA 23 Sukkar [2011] NSWCCA 140 Veen v The Queen (No 2) (1988) 164 CLR 465 Weatherall v R [2013] NSWCCA 282
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) AI (Offender) Ruhi Dagdanasar (Offender)
Representation:	Counsel: Mr D Robinson (Crown) Mr G Stanton (AI – Offender) Mr P Hogan (Dagdanasar – Offender)
File Number(s):	2016/341707; 2016/341614;
Publication restriction:	Statutory non-publication order in relation to the identity of the complainant. Non-publication order in relation to offender AI, until the conclusion of related proceedings.