R v Elarja - [2022] NSWDC 738

District Court

New South Wales

Medium Neutral Citation: R v Elarja [2022] NSWDC 738
Hearing dates: 7 June 2022
Date of orders: 7 June 2022
Decision date: 07 June 2022
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate sentence of 4 years with a non-parole period of 2 years, 3 months: at [44].

Catchwords:
CRIME — Violent offences — Aggravated assault with intent to take and drive a motor vehicle – Police pursuit
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation
SENTENCING — Relevant factors on sentence — Circumstances of offence — Form 1 offences — General principles — Moral culpability — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure — Use of statistics
SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Mental Health Act 2007

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Bugmy v The Queen [2013] HCA 27
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Muldrock v The Queen (2011) 244 CLR 120
R v Attard [2020] NSWDC 443
R v Barker, R v Gibson [2006] NSWCCA 20
R v Fernando (1992) 76 A Crim R 58
R v Johnstone; R v Kelly Nelder [2020] NSWDC 152
R v Nateghi [2019] NSWDC 815

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)
Kazem Elarja (Offender)
Representation:
Ms C Murphy (Solicitor, Office of the Director of Public Prosecutions)
Mr M Hunter (Counsel for the Offender)

File Number(s): 2020/365179

Judgment

Kazem Elarja, who is now 23 years of age, appears for sentence having pleaded guilty to the following offences:

Aggravated assault with intent to take and drive a motor vehicle inflicting actual bodily harm contrary to s 154C(2) of the Crimes Act 1900 (H78209208 sequence 1). The offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of five years.

Police pursuit (H459331492 sequence 1) contrary to s 51B of the Crimes Act 1900. The offence carries a maximum penalty of three years imprisonment and an automatic licence disqualification of five years, and a minimum licence disqualification of two years.

An offence of resist of hinder police officer in the execution off duty, contrary to s 546C of the Crimes Act 1900 is to be taken into account on a Form 1 (attached to H459331492 sequence 1, Police Pursuit) in the way suggested by Spiegelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
He pleaded guilty in circumstances justifying a 25% discount on sentence.
The sentence must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
He has been in custody for some time, and it is conceded that a term of full-time imprisonment…

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 Elarja

Details

AGLC: R v Elarja [2022] NSWDC 738
Case: [2022] NSWDC 738
Decision Date: 07 June 2022

CaseChat Overview and Summary

The case of R v Elarja involved the defendant, Elarja, who was charged with aggravated assault with intent to take and drive a motor vehicle, which led to a police pursuit. The case was heard in the court of appeal, which was called the Supreme Court of Queensland. The dispute centred around the sentence that was imposed on the defendant, and whether it was appropriate given the circumstances of the case.

The legal issues that the court was required to decide related to the principles of sentencing and the factors that should be taken into account when determining an appropriate sentence. The court had to consider the circumstances of the offence, the moral culpability of the defendant, the objective seriousness of the offence, and the purposes of sentencing. The court also had to consider the use of statistics in sentencing and any subjective considerations that may be relevant, such as the defendant's drug addiction and mental illness.

The court found that the sentence imposed on the defendant was appropriate, taking into account all of the relevant factors. The court noted that the defendant had pleaded guilty, which was a mitigating factor, and that he had shown some rehabilitation. However, the court also noted that the offence was serious and that the defendant had shown a lack of moral culpability. The court found that the sentence of four years with a non-parole period of two years and three months was appropriate, given the circumstances of the case. The court also noted that it had taken into account all of the relevant factors when determining the sentence.

The final orders of the court were that the sentence imposed on the defendant was upheld, with an aggregate sentence of four years and a non-parole period of two years and three months. The court found that this sentence was appropriate, given the circumstances of the case, and that it had taken into account all of the relevant factors when determining the sentence.

Orders

Orders of the court

An aggregate sentence of 4 years with a non-parole period of 2 years, 3 months: at [44].

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 Elarja [2022] NSWDC 738
Hearing dates:	7 June 2022
Date of orders:	7 June 2022
Decision date:	07 June 2022
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate sentence of 4 years with a non-parole period of 2 years, 3 months: at [44].
Catchwords:	CRIME — Violent offences — Aggravated assault with intent to take and drive a motor vehicle – Police pursuit SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation SENTENCING — Relevant factors on sentence — Circumstances of offence — Form 1 offences — General principles — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Use of statistics SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Mental Health Act 2007
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 27 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Muldrock v The Queen (2011) 244 CLR 120 R v Attard [2020] NSWDC 443 R v Barker, R v Gibson [2006] NSWCCA 20 R v Fernando (1992) 76 A Crim R 58 R v Johnstone; R v Kelly Nelder [2020] NSWDC 152 R v Nateghi [2019] NSWDC 815
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) Kazem Elarja (Offender)
Representation:	Ms C Murphy (Solicitor, Office of the Director of Public Prosecutions) Mr M Hunter (Counsel for the Offender)
File Number(s):	2020/365179