R v Daher - [2021] NSWDC 739

District Court

New South Wales

Medium Neutral Citation: R v Daher [2021] NSWDC 739
Hearing dates: 24 November 2021, 30 November 2021
Date of orders: 30 November 2021
Decision date: 30 November 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
I impose a term of imprisonment of two years and nine months with a non-parole period of 18 months: [46].

Catchwords:
CRIME — Violent offences — Reckless wounding
SENTENCING — Aggravating factors — Breach of conditional liberty
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Commencement — Pre-sentence custody period — judicial discretion
SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Deterrence — Establishing relevant matters — General principles — Maximum penalty — Objective seriousness
SENTENCING — Subjective considerations on sentence — Bail pending sentence — Drug addiction — Mental illness — Special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Devaney [2012] NSWCCA 285
Lai v R [2021] NSWCCA 217
R v Elfar [2003] NSWCCA 358
R v JDX; JDX v R [2017] NSWCCA 9
R v Qutami [2001] NSWCCA 353
R v Thomas [2007] NSWCCA 269
Ryan v R [2017] NSWCCA 209

Category: Sentence
Parties:
Regina (Office of Director of Public Prosecutions)
Tiger Daher (Offender)
Representation:
Ms I Maxwell-Williams; Mr N Brown (Solicitors, Office of Director of Public Prosecutions)
Mr E Tabchouri (Solicitor for the offender)

File Number(s): 2019/374319

Judgment

Tiger Daher, aged 23 years, has pleaded guilty to one count of reckless wounding in company contrary to s 35(3) of the Crimes Act 1900. The offence carries a maximum penalty of ten years imprisonment with a standard non‑parole period of four years.
He pleaded in circumstances which the Crown acknowledges justifies a 25% discount to reflect the utilitarian value of the plea.
It is conceded that a term of imprisonment is appropriate.
I must take into account the maximum penalty and standard non-parole period as yardsticks in the sentencing process as well as the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1900.
He spent a total of 600 days or almost 20 months in custody between his arrest on 28 November 2019 and 19 July 2021. During that time he was serving a fixed term term of imprisonment of 4 months between 6 November 2020 and 5 March 2021 on a count of hindering an investigation into a serious indictable offence. That term of imprisonment was his first custodial sentence, and as Mr Tabchouri put, there is probably some force in the suggestion that had he not been in custody bail refused on these matters he would not have received such a sentence. That, of course, is not to second guess the Magistrate’s decision, as there was no appeal of that sentence.. It does, however, go to the question of the discretion that I have to backdate the term of imprisonment some time…

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 Daher

Details

AGLC: R v Daher [2021] NSWDC 739
Case: [2021] NSWDC 739
Decision Date: 30 November 2021

CaseChat Overview and Summary

The case of R v Daher was heard in a higher court in Australia, where the defendant, Daher, faced charges related to a violent offence, specifically reckless wounding. The dispute centred on the appropriate sentence for Daher, given various aggravating and mitigating factors, as well as the principles of sentencing that the court must consider. The court needed to determine the appropriate term of imprisonment, taking into account the nature of the crime, the defendant's background, and the circumstances surrounding the offence.

The court was required to decide several legal issues, including the relevance of the defendant breaching conditional liberty as an aggravating factor, the impact of a plea of guilty and remorse on the sentencing, and the appropriate commencement of the sentence considering the pre-sentence custody period. Additionally, the court had to balance subjective considerations such as the defendant's drug addiction and mental illness against general principles of sentencing, including deterrence and the objective seriousness of the offence.

The court considered the aggravating factors such as the breach of conditional liberty and the nature of the violent offence, as well as the mitigating factors, including the defendant's plea of guilty and expressions of remorse. The court also took into account the defendant's drug addiction and mental illness, which were presented as special circumstances. After weighing all the relevant factors, the court determined that a term of imprisonment of two years and nine months with a non-parole period of 18 months was appropriate. This decision balanced the need for deterrence and the seriousness of the crime with the mitigating factors and special circumstances presented by the defendant.

The court's final order was to impose a term of imprisonment of two years and nine months, with a non-parole period of 18 months, as outlined in the judgment. This decision reflects the court's comprehensive consideration of all relevant factors and principles in determining an appropriate sentence for the defendant.

Orders

Orders of the court

I impose a term of imprisonment of two years and nine months with a non-parole period of 18 months: [46].

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 Daher [2021] NSWDC 739
Hearing dates:	24 November 2021, 30 November 2021
Date of orders:	30 November 2021
Decision date:	30 November 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	I impose a term of imprisonment of two years and nine months with a non-parole period of 18 months: [46].
Catchwords:	CRIME — Violent offences — Reckless wounding SENTENCING — Aggravating factors — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Commencement — Pre-sentence custody period — judicial discretion SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Deterrence — Establishing relevant matters — General principles — Maximum penalty — Objective seriousness SENTENCING — Subjective considerations on sentence — Bail pending sentence — Drug addiction — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Devaney [2012] NSWCCA 285 Lai v R [2021] NSWCCA 217 R v Elfar [2003] NSWCCA 358 R v JDX; JDX v R [2017] NSWCCA 9 R v Qutami [2001] NSWCCA 353 R v Thomas [2007] NSWCCA 269 Ryan v R [2017] NSWCCA 209
Category:	Sentence
Parties:	Regina (Office of Director of Public Prosecutions) Tiger Daher (Offender)
Representation:	Ms I Maxwell-Williams; Mr N Brown (Solicitors, Office of Director of Public Prosecutions) Mr E Tabchouri (Solicitor for the offender)
File Number(s):	2019/374319