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R v Baghdadi

R v Baghdadi

Case [2008] NSWCCA 239 14 October 2008

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: R v Baghdadi [2008] NSWCCA 239

HEARING DATE(S): 4 June 2008

JUDGMENT DATE:
14 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 64; Hidden J at 69

DECISION: 1. Appeal upheld.
2. Sentences imposed in the District Court quashed and in lieu thereof the respondent is sentenced as follows:
First offence: a fixed term of imprisonment of 2 years and 6 months commencing on 9 March 2006.
Second offence: a fixed term of imprisonment of 2 years and 6 months commencing on 9 March 2007.
Third offence: fixed term of imprisonment of 5 years commencing on 9 March 2008.
Fourth offence: a non-parole period of 4 years with a balance of term of 3 years. The sentence to commence on 9 March 2009.
Fifth offence: a non-parole period of 5 years with a balance of term of 4 years. The sentence to commence on 9 March 2010.
The aggregate sentence is a term of 13 years. The effective non-parole period is 9 years. The respondent would be eligible for parole on 8 March 2015.

CATCHWORDS: CRIMINAL LAW – Crown appeal against sentences – Armed robbery – Aggravated car-jacking – Robbery armed with a dangerous weapon – Specially aggravated break, enter and steal – Whether sentences manifestly inadequate and fail to reflect objective criminality – Whether sentencing judge improperly departed from guideline judgment for armed robbery (R v Henry) – Whether aggregate sentence fails to reflect totality of criminality (Pearce v The Queen) – New sentences imposed and start dates adjusted

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; 103 A Crim R 372
R v AA [2006] NSWCCA 55
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Campbell [2000] NSWCCA 157
R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1
R v Fidow [2004] NSWCCA 172
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Knight & Biuvanua [2007] NSWCCA 283
R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
R v Tran [1999] NSWCCA 109
R v Wall [2002] NSWCCA 42
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Wong & Leung v R [2001] HCA 64; (2001) 207 CLR 584

PARTIES: The Crown (Appellant)
Abdul Baghdadi (Respondent)

FILE NUMBER(S): CCA 2008/0586

COUNSEL: D Arnott SC (Crown/Appellant)
H Dhanji (Respondent)

SOLICITORS: Director of Public Prosecutions (Crown/Appellant)
Legal Aid Commission of NSw (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0042
07/21/0172
07/21/0183

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

LOWER COURT DATE OF DECISION: 18 December 2007

2008/0586

McCLELLAN CJ at CL
HULME J
HIDDEN J
TUESDAY 14 OCTOBER 2008

R v BAGHDADI

Judgment

1 McCLELLAN CJ at CL: This is a…

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 Baghdadi

Details

AGLC: R v Baghdadi [2008] NSWCCA 239
Case: [2008] NSWCCA 239
Decision Date: 14 October 2008

CaseChat Overview and Summary

The matter before the court was an appeal by the Crown against sentences imposed on a defendant found guilty of armed robbery, aggravated car-jacking, robbery armed with a dangerous weapon, and specially aggravated break, enter, and steal. The case was heard by the Full Court of the Supreme Court of South Australia. The Crown argued that the sentences imposed were manifestly inadequate and failed to reflect the objective criminality of the offences. The appeal raised questions about whether the sentencing judge had improperly departed from the guideline judgment for armed robbery, as set out in R v Henry, and whether the aggregate sentence failed to reflect the totality of the criminality, as per Pearce v The Queen.

The court considered the nature and seriousness of the offences, the defendant's criminal history, and the need for general and specific deterrence. The court examined the sentencing principles and guidelines established in previous cases, such as R v Henry and Pearce v The Queen, to determine whether the original sentences were manifestly inadequate. The Crown submitted that the original sentences did not adequately reflect the seriousness of the offences and the need for appropriate punishment and deterrence. The court also considered the totality principle, which requires that the aggregate sentence reflect the totality of the criminality involved in all the offences.

After considering the submissions and arguments from both parties, the court determined that the original sentences were manifestly inadequate. The court found that the sentencing judge had not adequately considered the objective criminality of the offences and had not imposed sentences that reflected the seriousness of the crimes. The court re-sentenced the defendant, imposing new sentences that better reflected the totality of the criminality and the need for general and specific deterrence. The start dates of the new sentences were adjusted to ensure that the defendant would serve an appropriate period of imprisonment. The appeal was thus allowed, and new sentences were imposed with adjusted start dates.

Orders