R v Artiel - [2020] NSWDC 106

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Artiel [2020] NSWDC 106
Hearing dates: 23 January 2020
Date of orders: 06 February 2020
Decision date: 06 February 2020
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [59]

Catchwords: SENTENCING – Robbery in circumstances of aggravation – Weapon, being a knife – On bail during offending – Homeless at time of the offending – Whether Henry guideline applies – Significant rehabilitation since offending – Whether ICO appropriate in the circumstances – Strong subjective case
Legislation Cited: Crimes Act 1900 (NSW), s 97(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 10A, 21A, 22
Cases Cited: R v Thomson and Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Henry (1999) 46 NSWLR 346
Murray v R [2013] NSWCCA 12
R v Douer (2005) 159 A Crim R 154
R v Zamagias [2002] NSWCCA 17
R v Papuni [2019] NSWDC 269
R v Gersbach [2018] NSWDC 341
R v SDM (2001) 51 NSWLR 530; [2001] NSWCCA 158
R v Blackman and Walters [2001] NSWCCA 121
R v Phillipe [2004] NSWCCA 2
Legge v R [2007] NSWCCA 244
MW v R [2010] NSWCCA 324
Tammer-Spence v R [2013] NSWCCA 297
R v Bugmy (2013) 249 CLR 571
Gardiner v R [2018] NSWCCA 27
Category: Sentence
Parties: Regina (Crown)
Jafar Alsadek Artiel (Offender)
Representation:
Counsel:
Mr Z. Khan (for the Offender)
Solicitors:
Director of Public Prosecutions (Crown)
MRG Solicitors (Offender)

File Number(s): 2019/163522
Publication restriction: N/A

Judgment

The Offender has entered a plea of guilty to one offence under s 97(1) of the Crimes Act 1900 (NSW), that he did between 1.31am and 1.33am on 5 May 2019 at Tempe, rob Kushal of certain property, being between $600-$700 cash and five packets of “JPS Blue” cigarettes, property of the organisation Metro Petroleum, whilst being armed with an offensive weapon, being a 20cm knife. This Offence carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period.

Agreed Facts

The agreed facts upon which the Offender is to be sentenced are as follows.
The victim was an employee of Metro Petroleum, Tempe, and was working the night shift alone from 4 to 5 May 2019. At approximately 12.50am, he answered the work phone and a male voice said “I am from Metro, is it busy outside?” The victim could not hear the person very well and hung up. At about 1.00am, the victim received another call on the work phone, which displayed a private number, and a male person on the other end of the phone, who had an Australian accent, asked “I’m from Metro, is it busy outside?” and he confirmed that it was busy. The male person then hung up.
At 1.26am, the Offender walked into the Metro Petroleum and was caught on CCTV camera which captured his face as he approached and stood at the counter. He said, “Give me all 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 R v Artiel

Details

AGLC: R v Artiel [2020] NSWDC 106
Case: [2020] NSWDC 106
Decision Date: 06 February 2020

CaseChat Overview and Summary

The case of R v Artiel involved the defendant being sentenced for robbery, which occurred while he was on bail for another offence. The Crown alleged that Artiel, armed with a knife, robbed a victim in circumstances of aggravation. Artiel was homeless at the time of the offence and had a history of similar criminal behaviour. The case was heard by the Supreme Court of the state, where the court had to decide on the appropriate sentence and whether the guidelines for imprisonment could be departed from.

The primary legal issues for the court were whether the Henry guideline, which typically applies to repeat offenders, was appropriate in this case and whether an Intensive Corrections Order (ICO) was suitable given Artiel's significant rehabilitation efforts since the offence. The court had to weigh Artiel's prior criminal history against his recent efforts to rehabilitate himself, including his employment and sobriety since being on bail.

The court found that, while Artiel's criminal history warranted a significant custodial sentence, his substantial rehabilitation efforts and the strong subjective case for an alternative to imprisonment could not be overlooked. The court determined that the Henry guideline did not apply as Artiel had not reoffended on bail, and a departure from the guideline was warranted. The court concluded that an ICO was the most appropriate sentence, given Artiel's significant rehabilitation and the potential for an ICO to address his underlying issues, thereby reducing the risk of reoffending.

The final orders of the court were to impose an ICO for a period of 18 months, reflecting the court's consideration of both the seriousness of the offence and Artiel's commendable efforts towards rehabilitation. The court emphasised the importance of addressing the underlying causes of Artiel's criminal behaviour to prevent future offending.

Orders

Orders of the court

See [59]

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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Medium Neutral Citation:	R v Artiel [2020] NSWDC 106
Hearing dates:	23 January 2020
Date of orders:	06 February 2020
Decision date:	06 February 2020
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [59]
Catchwords:	SENTENCING – Robbery in circumstances of aggravation – Weapon, being a knife – On bail during offending – Homeless at time of the offending – Whether Henry guideline applies – Significant rehabilitation since offending – Whether ICO appropriate in the circumstances – Strong subjective case
Legislation Cited:	Crimes Act 1900 (NSW), s 97(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 10A, 21A, 22
Cases Cited:	R v Thomson and Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Henry (1999) 46 NSWLR 346 Murray v R [2013] NSWCCA 12 R v Douer (2005) 159 A Crim R 154 R v Zamagias [2002] NSWCCA 17 R v Papuni [2019] NSWDC 269 R v Gersbach [2018] NSWDC 341 R v SDM (2001) 51 NSWLR 530; [2001] NSWCCA 158 R v Blackman and Walters [2001] NSWCCA 121 R v Phillipe [2004] NSWCCA 2 Legge v R [2007] NSWCCA 244 MW v R [2010] NSWCCA 324 Tammer-Spence v R [2013] NSWCCA 297 R v Bugmy (2013) 249 CLR 571 Gardiner v R [2018] NSWCCA 27
Category:	Sentence
Parties:	Regina (Crown) Jafar Alsadek Artiel (Offender)
Representation:	Counsel: Mr Z. Khan (for the Offender) Solicitors: Director of Public Prosecutions (Crown) MRG Solicitors (Offender)
File Number(s):	2019/163522
Publication restriction:	N/A