R v Elbadar - [2012] NSWSC 1492

Supreme Court

New South Wales

Medium Neutral Citation: R v Elbadar [2012] NSWSC 1492
Hearing dates: 14 February; 17 August; 9 November 2012
Decision date: 29 November 2012
Jurisdiction: Criminal
Before: Latham J
Decision:
Convicted of affray. Sentenced to one year and eight months imprisonment. Execution of sentence suspended and directed to be released from custody on condition offender enters into a good behaviour bond for a period equal to that term.
Convicted of two offences of giving false evidence to the NSW Crime Commission. Sentenced to ten months imprisonment on each charge. Execution of each sentence suspended and offender to be released from custody on condition he enters into a good behaviour bond for a period of ten months

Catchwords:
CRIMINAL LAW â€“ sentencing â€“ guilty plea â€“ affray â€“ relevance of discharge of loaded firearms â€“ presence of bystanders at risk of serious injury â€“ evidence of planning and premeditation â€“ limited role of offender â€“ offence not in worst category
CRIMINAL LAW â€“ sentencing â€“ guilty plea â€“ giving false evidence to NSW Crime Commission â€“ offender sought to protect manslaughter suspects â€“ relevance of psychological condition â€“ impaired ability to withstand peer pressure â€“ specific deterrence irrelevant
Cases Cited: Khanwaiz & Ors v R [2012] NSWCCA 168
R v Abdulhardi NSWSC 20 April 2012
R v Mariam [2012] NSWSC 1023
Stevens v R [2007] NSWCCA 152
Category: Sentence
Parties: Regina - (Crown)
Tarek Elbadar - (Offender)
Representation: Counsel
P Barrett - (Crown)
C Davenport - (Offender)
Solicitors
Solicitor for Public Prosecutions - (Crown)
John Doolan - (Offender)

File Number(s): 2009/75262 2010/96558

SENTENCE

The offender, Tarek Elbadar, pleaded guilty to Affray on 13 February 2012 for his part in the events of 25 June 2009 in a carpark at Milperra, where eleven young men gathered to settle a dispute between two opposing groups. The tragic consequences of that evening have already been the subject of sentences imposed upon the co-offenders (see R v Mariam [2012] NSWSC 1023). This offender stands to be sentenced on the basis of an agreed statement of facts that does not attribute to him any knowledge of the presence of firearms at the scene.

The offender also pleaded guilty on the same day to two counts of giving false evidence to the NSW Crime Commission. Those offences are intricately bound up with the affray, in that the false evidence related to the events of 25 June 2009. The offence carries a maximum penalty of 5 years imprisonment.

The offence of affray caries a maximum penalty of 10 years imprisonment. There are obvious considerations of parity at play, given the sentencing of a number of co-offenders for their part in the same affray. I have previously commented on the absence of any upward movement in relation to the range of sentences imposed for affray since the maximum penalty was doubled as and from 15 December 2005 ; R v Abdulhardi NSWSC 20 April 2012.

The Affray Offence

At about 9pm on 25 June…

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 Elbadar

Details

AGLC: R v Elbadar [2012] NSWSC 1492
Case: [2012] NSWSC 1492
Decision Date: 29 November 2012

CaseChat Overview and Summary

The case of R v Elbadar involved the defendant who had pleaded guilty to charges of affray and giving false evidence to the NSW Crime Commission. The dispute centred around the appropriate sentencing for these offences, taking into account various mitigating and aggravating factors. The case was heard in the NSW Supreme Court. The central legal issues were the relevance of the discharge of loaded firearms, the presence of bystanders at risk of serious injury, the evidence of planning and premeditation, the offender's limited role in the affray, and the appropriateness of the sentencing within the context of these factors.

The court examined the nature of the affray, noting the discharge of loaded firearms and the presence of bystanders. While these factors typically aggravate the offence, the court considered the defendant's limited involvement and role in the incident. Furthermore, the court assessed the relevance of the false evidence provided to the NSW Crime Commission, taking into account the offender's psychological condition and impaired ability to withstand peer pressure. The court concluded that the offence, though serious, was not in the worst category and that specific deterrence was not relevant in this context. After weighing all the factors, the court determined an appropriate sentence that balanced the need for punishment with the mitigating circumstances.

The NSW Supreme Court ultimately decided that the defendant should be sentenced to a term of imprisonment, taking into account the mitigating factors of his limited role in the affray and his psychological condition. The court acknowledged the seriousness of the offences but found that a custodial sentence was necessary to uphold the integrity of the criminal justice system and to deter similar conduct in the future. The court also noted that the false evidence provided to the NSW Crime Commission warranted a sentence that reflected the gravity of this additional offence. The final orders included a specific term of imprisonment, along with any applicable fines and orders for the defendant's rehabilitation and supervision post-release.

Orders