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R v Derbas

R v Derbas

Case [2003] NSWCCA 44 5 March 2003

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CITATION: R v DERBAS [2003] NSWCCA 44

HEARING DATE(S): 19 February 2003

JUDGMENT DATE:
5 March 2003

JUDGMENT OF: Hulme J at 1; Bell J at 42; Shaw J at 43

DECISION: Leave to appeal granted; Appeal dismissed

PARTIES :
Regina
Shadi DERBAS

FILE NUMBER(S): CCA 60181 of 2002

COUNSEL: Crown: DML Woodburne
Appellant: SJ Odgers SC

SOLICITORS: Crown: SE O'Connor
Appellant: Murphy's Lawyers

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0067

LOWER COURT
JUDICIAL OFFICER : Blanch CJDC

- 12 -

60181/02

HULME J
BELL J
SHAW J

R v Shadi DERBAS

Judgment

1 HULME J: This Applicant for leave to appeal pleaded guilty to a charge:-

For that he on or about 17 July 1998 at Punchbowl in the State of New South Wales did tamper with and dispose of a motor vehicle… with intent to hinder the discovery of evidence concerning a serious indictable offence committed by another person.

2 On 26 March 2002 Justice Blanch, Chief Judge of the District Court sentenced the Applicant to imprisonment for 5 years including a non-parole period of 3 years, both such periods to commence on 11 July 2001. The offence charged arises under Section 315(1)(b) of the Crimes Act and carries a maximum penalty of 7 years imprisonment.

3 The essential ingredients of, and which led to, the Applicant’s offending were as follows. The Applicant had stopped a car he was driving at traffic lights outside the Five Dock hotel. Two persons were having an argument on the footpath with a third person attempting to mediate. There were verbal exchanges between a Mr Rossini, one of the occupants of the car driven by the Applicant, and one or more of the persons on the footpath. One of the persons on the footpath began fighting with Mr Rossini who then alighted from the car. A second passenger then alighted and fired shots from a .22 calibre revolver fatally wounding two of the persons on the footpath and wounding, but not as seriously, the third.

4 The person who fired the shots re-entered the car and, after some difficulty, Rossini did also. The Applicant drove off. When he arrived at his home he was informed that his car had come up on a scanner which someone was presumably using to access police messages. The Applicant then directed two persons present to go to the ends of the street to look for police and ordered that the car be moved under the carport so it could not be seen by helicopters. Once the car was under the carport the Applicant said “I can’t lose the car. We’ll degrease it to get rid of fingerprints and saliva”. He then directed one of his associates to procure degreaser and then the car was sprayed and wiped down inside and out as directed by the Applicant.

5 On the Applicant’s instructions there was some tampering with the ignition steering lock and door locks in an attempt to make the car…

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 [2003] NSWCCA 44
Case: [2003] NSWCCA 44
Decision Date: 5 March 2003

CaseChat Overview and Summary

The case of R v Derbas involved Shadi Derbas, who was appealing against his conviction and sentence for tampering with and disposing of a motor vehicle with intent to hinder the discovery of evidence concerning a serious indictable offence committed by another person. The court was required to decide whether the sentence imposed by the sentencing judge was manifestly excessive and whether there were any errors in the sentencing process.

The Court of Criminal Appeal reviewed the arguments made by the appellant's counsel, who contended that the sentence was excessive and should be reduced. The court considered the nature of the offence, the appellant's role in the crime, and the potential impact on the investigation of the underlying offence. The court also examined the sentencing judge's reasons for imposing the sentence and whether there were any errors in the judge's assessment of the appellant's circumstances.

The Court of Criminal Appeal held that the sentence imposed by the sentencing judge was not manifestly excessive. The court emphasised the importance of considering the statutory provision and established principles of sentencing when determining the appropriate penalty. The court rejected the argument that the statistics on sentencing for similar offences should govern the process, stating that such statistics provide a check but should not be allowed to dictate the outcome. The court also found no error in the sentencing judge's assessment of the appellant's circumstances and concluded that the sentence was proportionate to the seriousness of the offence.

Therefore, the Court of Criminal Appeal granted leave to appeal but dismissed the appeal, affirming the sentence imposed by the sentencing judge.

Orders