R v Al-Basry; R v Robinson - [2019] NSWDC 437

District Court

New South Wales

Medium Neutral Citation: R v Al-Basry; R v Robinson [2019] NSWDC 437
Hearing dates: 26 April 2019; 16 May 2019
Date of orders: 16 May 2019
Decision date: 16 May 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
Al-Basry: A sentence of imprisonment of 3 years, 2 months with a non-parole period of 2 years, 1 month: at [36].
Robinson: A sentence of imprisonment of 3 years with a non-parole period of 2 years: at [36].

Catchwords: SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Aggravating factors — Home of victim or any other person — Planned or organised criminal activity — Record of previous convictions
SENTENCING — Relevant factors on sentence — Co-offenders — Parity
SENTENCING — Relevant factors on sentence — Form 1 offences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Thomas [2007] NSWCCA 269
McDowall v The Queen [2019] NSWCCA 29
Jinnette v R [2012] NSWCCA 217
Bugmy v The Queen (1990) 169 CLR 525
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)

Ahmad Al-Basry (Offender)
Steven Robinson (Offender)
Representation:
Ms A James (Crown)

Ms N Carroll (Offender – Al-Basry)
Ms A Chauvet (Offender – Robinson)

File Number(s): 2018/148197; 2018/148212

Judgment

Steven Robinson, aged 38 and Ahmad Al-Basry, aged 25, both appear for sentence having pleaded guilty to a charge under s 112(2) of the Crimes Act1900 of aggravated break and enter and commit a serious indictable offence, namely robbery while armed with an offensive weapon that arose out of an incident on 10 May 2018 when they went to the home of the 69 year old victim, Susan Highland, who it seemed had previously provided cannabis to at least one of them. The maximum penalty for this offence is 20 years imprisonment with a standard non-parole period of five years. These penalties are yardsticks in the sentencing process to be carried out in the light of the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999.
It is common ground that a discount of 25% on any term of imprisonment should be allowed for the utilitarian value of the guilty pleas. It is also conceded by the representatives of both offenders that the s 5 threshold has been crossed and that there is no alternative to a term of fulltime custody. Both offenders have been in custody since their arrest on 10 May 2018 and the term of imprisonment will commence on that date.
Each offender has charges to be dealt with on a Form 1 of take and drive a conveyance without the consent of the owner, which carries a maximum penalty of five years imprisonment if dealt with in this court or two years in the Local Court. I will deal with that in the way suggest by the Chief Justice in the guideline judgment on Form 1 matters.
There is a related offence for Mr Al-Basry of negligent driving. I will indicate…

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 437
Decision Date: 16 May 2019

CaseChat Overview and Summary

Two appellants were convicted of a range of offences committed in the course of an armed home invasion, including deprivation of liberty, assault, and robbery. The Supreme Court of New South Wales heard their appeals against sentence. The legal issues centred on the application of mitigating and aggravating factors in the sentencing process, particularly the weight to be given to the appellants' pleas of guilty, their expressions of remorse, and the nature of the offences committed. The court also had to consider the relevance of the appellants' criminal history and the circumstances of the offences, including whether they were planned or organised, and whether they involved violence or threats of violence.

The court emphasised the significance of the appellants' guilty pleas and expressions of remorse, which were acknowledged as substantial mitigating factors. However, these were balanced against the seriousness of the offences, which were planned and involved violence. The court noted the appellants' previous convictions and their lack of substantial employment history, which were considered aggravating factors. The court also highlighted the importance of achieving parity in sentencing between co-offenders, though it noted that some disparity was justified given the differing roles and levels of involvement in the crime. The court ultimately determined that the sentences should reflect the seriousness of the offences, the need for deterrence, and the appellants' potential for rehabilitation.

In determining the appropriate sentences, the court imposed a sentence of imprisonment of three years and two months on Al-Basry, with a non-parole period of two years and one month. For Robinson, the court imposed a sentence of imprisonment of three years, with a non-parole period of two years. The court's decision underscored the importance of considering both mitigating and aggravating factors in the sentencing process, and the need to achieve a balance between punishment, deterrence, and the potential for rehabilitation.

Orders

Orders of the court

Al-Basry: A sentence of imprisonment of 3 years, 2 months with a non-parole period of 2 years, 1 month: at [36].

Robinson: A sentence of imprisonment of 3 years with a non-parole period of 2 years: at [36].

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Al-Basry; R v Robinson [2019] NSWDC 437
Hearing dates:	26 April 2019; 16 May 2019
Date of orders:	16 May 2019
Decision date:	16 May 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Al-Basry: A sentence of imprisonment of 3 years, 2 months with a non-parole period of 2 years, 1 month: at [36]. Robinson: A sentence of imprisonment of 3 years with a non-parole period of 2 years: at [36].
Catchwords:	SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Aggravating factors — Home of victim or any other person — Planned or organised criminal activity — Record of previous convictions SENTENCING — Relevant factors on sentence — Co-offenders — Parity SENTENCING — Relevant factors on sentence — Form 1 offences
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Thomas [2007] NSWCCA 269 McDowall v The Queen [2019] NSWCCA 29 Jinnette v R [2012] NSWCCA 217 Bugmy v The Queen (1990) 169 CLR 525
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Ahmad Al-Basry (Offender) Steven Robinson (Offender)
Representation:	Ms A James (Crown) Ms N Carroll (Offender – Al-Basry) Ms A Chauvet (Offender – Robinson)
File Number(s):	2018/148197; 2018/148212