R v Baydoun - [2020] NSWDC 669

District Court

New South Wales

Medium Neutral Citation: R v Baydoun [2020] NSWDC 669
Hearing dates: 23 and 30 October; 4 November 2020
Decision date: 04 November 2020
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
(1) The Offender is convicted.
(2) He is to serve a non-parole period of 2 years and 3 months imprisonment, commencing 21 July 2020 and expiring on 20 October 2022.
(3) Thereafter the Offender is to serve an additional term of 1 year and 3 months imprisonment commencing 21 October 2022 and expiring on 20 January 2024 during which he shall be eligible to be released on parole.
(4) The head term is one of 3 years and 6 months and the earliest release date is 20 October 2022.
(5) The Offender is to be referred to the Drug Court to assess his eligibility to be placed in the Compulsory Drug Treatment Program.

Catchwords:
CRIME – By deception dishonestly obtain a financial advantage – 30 different victims over period of around 7 months
SENTENCING – Degree of planning, sophistication and organisation – Somewhat reduced moral culpability – At about the mid-range of objective seriousness – Plea of guilty – 25% discount – Remorse – Offending committed while Offender on conditional liberty – No issue of parity – History of substance and gambling abuse – Guarded but hopeful prospects of rehabilitation – Medium risk of re-offending – Imposition of term of imprisonment – Referral to Compulsory Drug Treatment Program

Legislation Cited:
Crimes Act 1900 (NSW), s 192E(1)(b)
Crimes (Administration of Sentences) Act 1999 (NSW), Part 4A
Crimes (Administration of Sentences) Regulation 2014 (NSW), Part 12
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A
Drug Courts Act 1998 (NSW), s 18B

Cases Cited:
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102.
R v Fiordelli [2020] NSWDC 154
Rv Thomson and Houlton (2000) 49 NSWLR 383

Category: Sentence
Parties: Regina (Crown)
Shady Baydoun (Offender)
Representation:
Counsel:
Mr G. James QC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Millennium Lawyers (Offender)

File Number(s): 2018/160237

Judgment

On 23 October 2020 Shady Baydoun (the Offender) was arraigned before me and pleaded guilty to one offence that he did between 6 October 2017 and 8 May 2018, at Redfern and other places in the State of New South Wales, by deception dishonestly obtain a financial advantage in the sum of $367,035.91 contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years imprisonment with no standard non-parole period. Following the hearing of sentencing submissions the matter was listed for sentence on 30 October 2020 at 2pm.
Earlier that day I informed the parties through my Associate that there were inconsistencies in the indictment and the agreed facts in relation to quantum. [1] After again drawing this to the parties’ attention in open court I adjourned the matter to allow the parties to make enquiries as to the actual quantum of the offending. On 2 November…

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.

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Details

Case: [2020] NSWDC 669
Decision Date: 04 November 2020

CaseChat Overview and Summary

In the case of R v Baydoun, the defendant was charged with obtaining a financial advantage by deception from 30 different victims over a period of approximately seven months. The matter was heard and determined in a relevant court. The central issue before the court was the degree of planning, sophistication, and organisation involved in the offending, as well as the degree of moral culpability of the offender. Additional considerations included the offender’s plea of guilty, the presence of remorse, the offender's history of substance and gambling abuse, and his prospects of rehabilitation.

The court carefully considered the facts of the case, noting the significant level of planning and organisation demonstrated by the offender in committing the deceptions. Despite this, the court found that the offender’s moral culpability was somewhat reduced due to mitigating factors. The offending was assessed to be at about the mid-range of objective seriousness. Given the offender’s early guilty plea, a 25% discount was applied to the sentence. The court also took into account the offender’s history of substance and gambling abuse, as well as his guarded but hopeful prospects of rehabilitation. The risk of re-offending was deemed to be medium.

Consequently, the court determined that a term of imprisonment was appropriate. The offender was sentenced to a non-parole period of 2 years and 3 months, with an additional term of 1 year and 3 months, making the total head term 3 years and 6 months. The earliest release date was set as 20 October 2022. Additionally, the offender was to be referred to the Drug Court to assess his eligibility for the Compulsory Drug Treatment Program.

Orders

Orders of the court

(1) The Offender is convicted.

(2) He is to serve a non-parole period of 2 years and 3 months imprisonment, commencing 21 July 2020 and expiring on 20 October 2022.

(3) Thereafter the Offender is to serve an additional term of 1 year and 3 months imprisonment commencing 21 October 2022 and expiring on 20 January 2024 during which he shall be eligible to be released on parole.

(4) The head term is one of 3 years and 6 months and the earliest release date is 20 October 2022.

(5) The Offender is to be referred to the Drug Court to assess his eligibility to be placed in the Compulsory Drug Treatment Program.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Baydoun [2020] NSWDC 669
Hearing dates:	23 and 30 October; 4 November 2020
Decision date:	04 November 2020
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	(1) The Offender is convicted. (2) He is to serve a non-parole period of 2 years and 3 months imprisonment, commencing 21 July 2020 and expiring on 20 October 2022. (3) Thereafter the Offender is to serve an additional term of 1 year and 3 months imprisonment commencing 21 October 2022 and expiring on 20 January 2024 during which he shall be eligible to be released on parole. (4) The head term is one of 3 years and 6 months and the earliest release date is 20 October 2022. (5) The Offender is to be referred to the Drug Court to assess his eligibility to be placed in the Compulsory Drug Treatment Program.
Catchwords:	CRIME – By deception dishonestly obtain a financial advantage – 30 different victims over period of around 7 months SENTENCING – Degree of planning, sophistication and organisation – Somewhat reduced moral culpability – At about the mid-range of objective seriousness – Plea of guilty – 25% discount – Remorse – Offending committed while Offender on conditional liberty – No issue of parity – History of substance and gambling abuse – Guarded but hopeful prospects of rehabilitation – Medium risk of re-offending – Imposition of term of imprisonment – Referral to Compulsory Drug Treatment Program
Legislation Cited:	Crimes Act 1900 (NSW), s 192E(1)(b) Crimes (Administration of Sentences) Act 1999 (NSW), Part 4A Crimes (Administration of Sentences) Regulation 2014 (NSW), Part 12 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A Drug Courts Act 1998 (NSW), s 18B
Cases Cited:	R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102. R v Fiordelli [2020] NSWDC 154 Rv Thomson and Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina (Crown) Shady Baydoun (Offender)
Representation:	Counsel: Mr G. James QC (Offender) Solicitors: Director of Public Prosecutions (Crown) Millennium Lawyers (Offender)
File Number(s):	2018/160237