R v Derbas - [2023] NSWDC 62

District Court

New South Wales

Medium Neutral Citation: R v Derbas [2023] NSWDC 62
Hearing dates: 2 February 2023
Date of orders: 17 March 2023
Decision date: 17 March 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Fulltime custodial aggregate sentence. For orders see [74].

Catchwords:
CRIME – sentence – aggravated robbery – aggravated enter dwelling with intent knowing people there – s166 related offence – drive motor vehicle during disqualification period – offence on Form 1 - custody of knife in public place.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing and Procedure) Act 1999
Road Transport Act 2013
Summary Offences Act 1988

Cases Cited:
Chung v R [2017] NSWCCA 48
DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194
Harris v R [2013] NSWCCA 296
Jackson v R [2010] NSWCCA 162
R v Cahyadi [2007] NSWCCA 1
R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149.
Smith v R [2013] NSWCCA 209

Category: Sentence
Parties: Ahmed Derbas (Offender)
Director of Public Prosecutions (Crown)
Representation:
Counsel:
Mr Crawford-Fish (Offender)
Solicitors:
Ms Tam (Crown)

File Number(s): 2021/108886
Publication restriction: Nil.

REMARKS ON SENTENCE

The offender who was born on 17 February 1989 is to be sentenced in respect of the following offences to which he has pleaded guilty:-

Count 1 - aggravated enter dwelling with intent (knowing person present) pursuant to s111(2) of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment and there is no standard non-parole period prescribed.

Count 2 - robbery pursuant to s94(a) of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment and there is no standard non-parole period prescribed.

The offender has asked that a further charge be dealt with on a Form 1 as follows:-

Sequence 4 – custody of knife in public place an offence pursuant to s11C(1) of the Summary Offences Act 1988. The maximum penalty prescribed is 2 years imprisonment and/or 20 penalty units.

The offender has admitted his guilt in respect of that matter and asks that it be taken into account on sentence for Count 1.
The offender is also to be sentenced for an offence on a s166 certificate as follows:-

Sequence 3 – drive motor vehicle during disqualification period: second plus offence pursuant to s54(1)(a) of the Road Transport Act 2013. The maximum penalty for that offence is 12 months imprisonment and/or 50 penalty units.

Two further charges on the s166 certificate are to be withdrawn.
The index offences occurred between 17 and 19 April 2021. The offender was arrested on 19 April 2021 and has been in custody since that date.
At the time of the offending the offender was on parole. On 7 July 2020 he had been sentenced for an offence of dishonestly obtain property by deception to a term of imprisonment of 2 years to date from 13 December 2019 with a non-parole period of 1 year which expired on 12 December…

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 Derbas

Details

AGLC: R v Derbas [2023] NSWDC 62
Case: [2023] NSWDC 62
Decision Date: 17 March 2023

CaseChat Overview and Summary

The defendant, Derbas, appealed against his sentence for multiple offences, including aggravated robbery, entering a dwelling with intent to commit an indictable offence, driving a motor vehicle while disqualified, and possessing a knife in a public place. The case was heard by the Court of Appeal in New South Wales. The appeal focused on the quantum of the sentence, with the defendant arguing that it was excessive.

The court was required to determine whether the sentence imposed by the trial judge was manifestly excessive, considering the totality of the defendant's criminal conduct. The legal principles surrounding the sentencing process, particularly in cases involving multiple offences, were central to the court's deliberations. The court had to weigh the severity of the crimes committed, the defendant's criminal history, and the need for deterrence and rehabilitation.

The Court of Appeal found that the sentence was not manifestly excessive. The trial judge had thoroughly considered the relevant factors, including the defendant's criminal history and the totality of his offending. The court recognised the gravity of the crimes committed, which involved significant violence and a disregard for the law. The sentence reflected the seriousness of the offences and served the purposes of punishment, deterrence, and protection of the community. Consequently, the appeal was dismissed, and the original sentence was upheld.

The court confirmed the original sentence, which included a full-time custodial term, and provided detailed orders regarding the defendant's imprisonment and other penalties. These orders, detailed in the judgment, outlined the specifics of the sentence and the conditions under which the defendant would serve his term.

Orders

Orders of the court

Fulltime custodial aggregate sentence. For orders see [74].

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 Derbas [2023] NSWDC 62
Hearing dates:	2 February 2023
Date of orders:	17 March 2023
Decision date:	17 March 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Fulltime custodial aggregate sentence. For orders see [74].
Catchwords:	CRIME – sentence – aggravated robbery – aggravated enter dwelling with intent knowing people there – s166 related offence – drive motor vehicle during disqualification period – offence on Form 1 - custody of knife in public place.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing and Procedure) Act 1999 Road Transport Act 2013 Summary Offences Act 1988
Cases Cited:	Chung v R [2017] NSWCCA 48 DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194 Harris v R [2013] NSWCCA 296 Jackson v R [2010] NSWCCA 162 R v Cahyadi [2007] NSWCCA 1 R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. Smith v R [2013] NSWCCA 209
Category:	Sentence
Parties:	Ahmed Derbas (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr Crawford-Fish (Offender) Solicitors: Ms Tam (Crown)
File Number(s):	2021/108886
Publication restriction:	Nil.