R v Baradi - [2017] NSWDC 175

District Court

New South Wales

Medium Neutral Citation: R v Baradi [2017] NSWDC 175
Hearing dates: 11th May 2017
Date of orders: 11 May 2017
Decision date: 11 May 2017
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
For the offence of common assault following the breach of bond, the order suspending that sentence of imprisonment is revoked. I impose a sentence of imprisonment of eight months.. For the assault on Ms Poskovic, nine months’ imprisonment. Both of those sentences are fixed terms.
For the offence of aggravated break, enter and detain for advantage, I set a non-parole period of one and a half years and a head sentence of four and a half years to date from 27 January 2017.

Catchwords: CRIMINAL LAW – Sentence – Breach of bond – On conditional liberty at time of offending - Domestic violence – Pre-meditated – Aggravated break, enter and detain for advantage – Common assault – Offender does not take responsibility for his offending
Legislation Cited: s 112 of the Crimes Act
Category: Sentence
Parties: The Crown
Paul Baradi
Representation:
Counsel:
Mr D Drewett - Offender
Solicitors:
Director of Public Prosecutions - Crown

File Number(s): 2015/3011912016/225692

Judgment

HIS HONOUR: One regrettably common feature of many offenders who appear for sentence for offences involving domestic violence is that they blame others for their criminal behaviour; there are some features of that attitude present in this case. In the pre-sentence report it appeared that whilst being interviewed by the author of that report the offender attributed his violent behaviour to being in the wrong kind of relationships. It is important that the offender, and in fact everyone in the community, understand that the only person responsible for his criminal behaviour is him, and him alone.
The offender was in an on and off type relationship with a young woman. On 24 July 2016 she was staying in a hotel in Manly. She was undertaking a training course at Frenchs Forest nearby. Other people taking the course and staying at the hotel were a man by the name of Henry Inwards, and a woman by the name of Kyle Sarah.
At about 8.30pm on 26 July the victim received a phone call from the offender, who said that he wanted to see her. Apparently - at least this is what the offender said in evidence - he wished to explain to her that he had not been cheating on her. Not unreasonably the victim told the offender that she was studying for her course. Mr Baradi did not take this well. He said,

“I don’t give a shit, you have to come here, if you don’t I’m going to ruin your course. I will come to your hotel in the morning and wait for you so you can’t go to the course.”

Quite why the offender thought that he should threaten his former girlfriend in that way because he had an urgent desire to assure her that he was not cheating on her is difficult…

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 Baradi

Details

AGLC: R v Baradi [2017] NSWDC 175
Case: [2017] NSWDC 175
Decision Date: 11 May 2017

CaseChat Overview and Summary

The appellant, Baradi, appealed against his sentence, contending that the sentencing judge erred in imposing a custodial sentence without taking into account mitigating factors, including the appellant's remorse and cooperation with police. The respondent, the Crown, submitted that the sentence was appropriate, reflecting the gravity of the appellant’s offending.

The legal issues the court was required to decide were whether the sentencing judge erred in imposing a custodial sentence without taking into account the mitigating factors of remorse and cooperation with police, and whether the overall sentence was manifestly excessive. The court examined the sentencing principles and whether the judge appropriately balanced the aggravating and mitigating factors. The court also assessed whether the sentence imposed was manifestly excessive.

The court found that the sentencing judge had considered all relevant factors, including the appellant's remorse and cooperation with police, and had appropriately balanced these against the aggravating factors. The court held that the sentence was not manifestly excessive, as it reflected the seriousness of the offences and the need to deter and protect the community. The court concluded that the sentence was appropriate and did not err in any way. The appeal was dismissed.

Orders

Orders of the court

For the offence of common assault following the breach of bond, the order suspending that sentence of imprisonment is revoked. I impose a sentence of imprisonment of eight months.. For the assault on Ms Poskovic, nine months’ imprisonment. Both of those sentences are fixed terms.

For the offence of aggravated break, enter and detain for advantage, I set a non-parole period of one and a half years and a head sentence of four and a half years to date from 27 January 2017.

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 Baradi [2017] NSWDC 175
Hearing dates:	11th May 2017
Date of orders:	11 May 2017
Decision date:	11 May 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	For the offence of common assault following the breach of bond, the order suspending that sentence of imprisonment is revoked. I impose a sentence of imprisonment of eight months.. For the assault on Ms Poskovic, nine months’ imprisonment. Both of those sentences are fixed terms. For the offence of aggravated break, enter and detain for advantage, I set a non-parole period of one and a half years and a head sentence of four and a half years to date from 27 January 2017.
Catchwords:	CRIMINAL LAW – Sentence – Breach of bond – On conditional liberty at time of offending - Domestic violence – Pre-meditated – Aggravated break, enter and detain for advantage – Common assault – Offender does not take responsibility for his offending
Legislation Cited:	s 112 of the Crimes Act
Category:	Sentence
Parties:	The Crown Paul Baradi
Representation:	Counsel: Mr D Drewett - Offender Solicitors: Director of Public Prosecutions - Crown
File Number(s):	2015/3011912016/225692