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R v Barakat

R v Barakat

Case [2004] NSWCCA 201 23 June 2004

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. BARAKAT [2004] NSWCCA 201

FILE NUMBER(S):
No. 60019 of 2004

HEARING DATE(S): Thursday 8 April 2004

JUDGMENT DATE: 23/06/2004

PARTIES:
REGINA v.
BARAKAT, Nadar

JUDGMENT OF: Beazley JA Dowd J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0382

LOWER COURT JUDICIAL OFFICER: Dodd, DCJ.

COUNSEL:
Crown: P. Ingram
App: P. Byrne, SC.

SOLICITORS:
Crown: S. Kavanagh
App: Ross Hill & Associates

CATCHWORDS:
Criminal law - sentence - leave to appeal non-parole period - special circumstances - whether further allowance should be made when fixing non-parole period for factors taken into account when fixing full term - necessity for proper reasons in such a case - necessity for non-parole period to reflect objective gravity of offence - even if error in reasoning shown court may affirm sentence in the result.

LEGISLATION CITED:
Justices Act 1902
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

No. 60019 of 2004
BEAZLEY, JA.
DOWD, J.
GREG JAMES, J.
WEDNESDAY 23 JUNE 2004

REGINA v. NADAR BARAKAT

Judgment

BEAZLEY, JA: I agree with Greg James, J.
DOWD, J: I have seen the proposed orders of the Greg James, J. and his reasons therefor. I agree with Greg James, J.
GREG JAMES, J: This is an application by Nadar Barakat for leave to appeal against sentences for two offences of supplying prohibited drugs in indictable quantities. The sentences were imposed in the District Court of New South Wales on 2 October 2003.
The amounts of drug in question were 120 grams of heroin in respect of the first count and 120 grams of cocaine in respect of the second count, each quantity being in excess of the indictable quantity for the relevant charge.
The maximum penalty in respect of each charge was 15 years imprisonment and a fine of $220,000 or both.
A seven page document comprising agreed facts signed by the applicant and the solicitor for the Director of Public Prosecutions was tendered in the sentencing proceedings as setting out the facts of the offences. His Honour was invited to and did proceed upon the basis of the content of that document incorporating that content in his remarks on sentence.
For the purposes of this judgment it is only necessary to summarise that content.
Between 3 September 2001 and 21 December 2001, the applicant, together with a number of other persons, utilised premises at Alexandria for the preparation, packaging and storage of “street deals” of heroin and cocaine which were sold on a regular daily basis to drug users in and around the Petersham, Lewisham, St. Peters, Stanmore, Marrickville and Hurlstone Park areas. Certain of the offenders supplied regular street deals. Another regularly assisted as a driver. The present applicant acted as an overseer in respect of the activities of the runners who delivered the drugs. The present applicant stayed in touch with…

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 Barakat

Details

AGLC: R v Barakat [2004] NSWCCA 201
Case: [2004] NSWCCA 201
Decision Date: 23 June 2004

CaseChat Overview and Summary

The case of R v Barakat involved a defendant who was convicted of a serious criminal offence. The matter was before the court to determine whether the sentence imposed was appropriate and whether leave to appeal the non-parole period should be granted. The court had to consider the special circumstances of the case and whether the non-parole period adequately reflected the objective gravity of the offence. The defendant sought leave to appeal the non-parole period on the basis that the sentencing judge had erred in his reasoning when determining the full term of imprisonment.

The legal issues before the court included whether further allowance should be made when fixing the non-parole period for factors that were taken into account when determining the full term, and whether the reasons provided for such adjustments were sufficient. The court also had to determine whether the non-parole period was properly reflective of the objective gravity of the offence, and if the sentence should be affirmed even in the presence of errors in reasoning.

The court found that while there was an error in the reasoning process, the overall sentence imposed was appropriate. The non-parole period was set in a manner that reflected the gravity of the offence and the special circumstances were adequately considered. The court held that it was not necessary for the non-parole period to be adjusted, even if the reasoning process contained errors, as long as the outcome was just and appropriate. The court affirmed the sentence imposed by the lower court, emphasizing the importance of the non-parole period reflecting the objective gravity of the offence.

The final orders of the court were that leave to appeal the non-parole period was denied, and the original sentence was affirmed. The court found that the sentence was just and appropriate, and the non-parole period was set in a manner that adequately reflected the gravity of the offence and the special circumstances of the case.

Orders