R v Khan (1996) 86 A Crim R 552 R v Todd (1982) 2 NSWLR 517 esp at 519 R v Mill (1988) CLR 59 R v Bragias (1997) 92 A Crim R 330 R B Bradford (unreported, NSW CCA 6 May 1988 R v Glen (unreported) NSW CCA 19 December 1994 R v Rowe (1996) 89 A Crim R 467 R v Scognamiglio (1991) 56 A Crim R 31 R v Letteri unreported NSW CCA 18 March 1992 R v Engert 1995) 84 A Crim R 67 R v Champion (1992) 64 A Crim R 244 R v Wright (1997) 93 A Crim R 48 R v Mooney (unreported 21 June 1978) Anderson (1980) 2 A Crim R 379 Kilmartin (1989) 41 A Crim R 22 Man (1990) 50 A Crim R 79 Currie (CCA unreported 25 February 1992) Veen (No 2) [(1988) 164 CLR 465]
DECISION:
Leave to appeal granted, appeal allowed, sentence quashed; in lieu there the applicant be sentenced to a total term of penal servitude for five years made up of a minimum term of two and a half years commencing on 20 February 1988 and expiring on 19 August 2000 and an additional term of two and a half years commencing on 20 August 2000 and expiring on 29 February 2003. The applicant will be eligible for parole on 19 August 2000.
IN THE COURT OF CRIMINAL APPEAL
60525/98
STUDDERT J SIMPSON J
Tuesday 31 August 1999
REGINA v Abdulrahman FAHDA
Judgment
STUDDERT J
1 I agree with Simpson J.
**********
IN THE COURT OF CRIMINAL APPEAL
60525/98
STUDDERT J SIMPSON J
Tuesday 31 August 1999
REGINA v Abdulrahman FAHDA
Judgment
SIMPSON J :
2 This is an application for leave to appeal against the severity of a sentence imposed on the applicant on 11 September 1998 by Gibson DCJ following the applicant’s plea of guilty to a charge of wounding with intent to inflict grievous bodily harm brought under s 33 of the Crimes At 1900. The section prescribes a maximum penalty of penal servitude for twenty-five years. After taking into account two months of pre sentence custody Gibson DCJ sentenced the applicant to a total term of penal servitude for six years and ten months, which was an effective sentence of seven years. He found that special circumstances existed justifying departure from the statutory ratio contained in…
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.
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Details
AGLC
R v Fahda [1999] NSWCCA 267
Case
[1999] NSWCCA 267
Decision Date
CaseChat Overview and Summary
The case of R v Fahda involved the defendant, Fahda, who was convicted of a serious crime and subsequently sentenced by the court. The nature of the dispute was the severity of the sentence imposed, which Fahda sought to challenge on the grounds that it was excessive. The appeal was heard by the higher court, which had to determine whether the sentence was unduly severe and if special circumstances existed to warrant a reduction.
The legal issues before the court included the assessment of the severity of the sentence in relation to the crime committed and the identification of any special circumstances that could mitigate the sentence. The court had to consider whether the original sentence was disproportionate to the crime and if the presence of special circumstances justified a reduction in the sentence. The court also needed to evaluate the arguments presented by both parties regarding the appropriate sentence.
In delivering the judgment, the court found that the sentence imposed was indeed unduly severe and that special circumstances did exist. The court identified specific factors that warranted a reduction in the sentence, which included the defendant's background, the nature of the crime, and the impact of the sentence on the defendant. The appeal was allowed, and the court substituted a new sentence that it deemed appropriate. The court’s decision was based on a detailed analysis of the relevant legal principles and the specific facts of the case.
The final orders of the court involved substituting a new sentence for the original one, which was considered to be more proportionate and reflective of the special circumstances identified. The court's decision provided guidance on the appropriate sentencing approach in similar cases involving special circumstances.