R v Bahsa - [2003] NSWCCA 36

Reported Decision:
138 A Crim R 245

New South Wales

Court of Criminal Appeal

CITATION: R v Bahsa [2003] NSWCCA 36

HEARING DATE(S): 25/02/03

JUDGMENT DATE:
12 March 2003

JUDGMENT OF: Sheller JA at 1; James J at 6; Smart AJ at 97

DECISION: Crown appeal against sentence allowed - Respondent re-sentenced

CATCHWORDS: Criminal law - sentencing - Crown appeal against sentence - multiple offences - armed robbery - detaining for advantage - "guideline" offence - totality

CASES CITED: Everett v The Queen (1994) 181 CLR 295
R v Henry (1999) 46 NSWLR 46
Pearce v The Queen (1994) 194 CLR 610
R v Baker (2000) NSWCCA 85
R v Hammoud (2000) 118 A Crim R 66
R v AEM (2002) NSWCCA 58
R v Myers (2002) NSWCCA 162
R v Finnie (2002) NSWCCA 533
R v Fernando (2002) NSWCCA 28
R v Sharma (2002) NSWCCA 142

PARTIES :
Regina v Ammin BAHSA

FILE NUMBER(S): CCA 60493/02

COUNSEL: GIO Rowling - Crown
In Person - Respondent

SOLICITORS: SE O'Connor - Crown
Graham W Howe & Company - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0189; 02/21/0177; 02/21/0178; 02/21/0188

LOWER COURT
JUDICIAL OFFICER : Tupman DCJ

60493/02

SHELLER JA
JAMES J
SMART AJ
Wednesday 12 March 2003

REGINA v Ammin BAHSA

Judgment

1 SHELLER JA: I have had the benefit of reading the reasons for judgment in draft prepared by James J. I agree with those reasons and the sentences his Honour proposes. However, I wish separately to express my concern at the serious inadequacy of the sentences imposed in the District Court.

2 Given that, as James J pointed out, the fixed term sentences imposed for each of the eight offences of armed robbery should be treated as the equivalent of non-parole periods and that, as the sentencing Judge found, there were no special circumstances, only one, charge 11, fell within the range of four to five years for the appropriate head sentence suggested in R v Henry (1999) 46 NSWLR 346 at pars 161-170 and even that one was at the bottom of the range.

3 As James J has also pointed out, the offence in charge 11 was committed by the respondent in company and armed with a large knife. The victim attendant, who was working alone at the service station, was pushed, punched and his lip was cut.

4 James J has quoted, from the sentencing Judge’s statement of the facts of the offences, what her Honour said about the detention of Mr Drivilas. During that episode the respondent threatened to kill Mr Drivilas who was then aged 17. The offence was committed in company. Mr Drivilas was covered so that he could not see and believed a sharp object pressed against his skin and his neck was a knife. He was searched and robbed. He was forced into motor vehicles. His shoes and trousers were removed and he was tied up. He was driven about Sydney, blindfolded, tied up and semi-naked. Burning cigarettes were…

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 Bahsa

Details

AGLC: R v Bahsa [2003] NSWCCA 36
Case: [2003] NSWCCA 36
Decision Date: 12 March 2003

CaseChat Overview and Summary

The matter of R v Bahsa involved the defendant, Bahsa, who was sentenced for multiple offences including armed robbery and detaining for advantage. The Crown appealed the sentence, arguing it was unduly lenient. The High Court of Australia was the forum for this appeal.

The central legal issues before the Court were whether the trial judge had erred in his application of the principles of sentencing, particularly in relation to the concept of totality and the guidelines for sentencing for multiple offences. The Crown contended that the trial judge had failed to adequately account for the cumulative impact of the offences, and that the sentence imposed was manifestly inadequate. The defence argued that the sentence was appropriate given the circumstances and the judge's consideration of mitigating factors.

The Court examined the sentencing principles and guidelines, focusing on the need for consistency and proportionality in sentencing. It held that the trial judge had erred in not sufficiently considering the totality of the offending and had not properly applied the guideline judgements. The Court concluded that the sentence was manifestly inadequate and ordered a re-sentencing by the trial judge or a higher court. This decision underscored the importance of adhering to established sentencing principles and ensuring that sentences reflect the gravity of the crimes committed.

Orders