R v Haddad - [2009] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

R v Haddad [2009] QCA 143

PARTIES:

R
v
BACHAR HADDAD
(applicant)

FILE NO/S:

CA No 69 of 2009
SC No 2 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

28 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2009

JUDGES:

Holmes JA, McMurdo and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application Dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant was not aware this his partner was pregnant at the date of sentence – where the child cared for by the applicant’s elderly parents with personal and financial difficulty – whether the original sentence should be varied due to the hardship on applicant’s family

R v D’Arrigo; ex parte Attorney-General of Queensland[2004] QCA 399, cited
R v MP [2004] QCA 170, cited
The Queen v Wirth (1976) 14 SASR 291, cited

COUNSEL:

M Kriss for the applicant
M B Lehane for the respondent

SOLICITORS:

Sydney Metropolitan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

APPLEGARTH J: The applicant was sentenced in the Supreme Court at Brisbane on 7 January 2008 after he pleaded guilty to three counts of supplying dangerous drugs. He was sentenced on each count to a term of imprisonment of six years. He was also ordered to serve the whole of a suspended period of imprisonment that had been imposed on 26 October 2000. A parole eligibility date of 6 January 2010 was fixed.

The applicant applied to this Court on 26 March 2009 for an extension of time within which to appeal and for leave to appeal against his sentence. In those applications he states, "This is not an appeal against the original sentence as such, but is an application for variation of the original sentence."

The grounds for each application are of a compassionate nature. The matters outlined in his applications are not verified by affidavit. They are that on 13 July 2008 his partner gave birth to a child and the applicant was unaware at the time of the hearing that his partner was pregnant. The applicant says that his partner, who is aged 20, has shown that she is not capable of rearing their son without assistance.

The child apparently is being cared for by the applicant's elderly parents with the assistance of his sister, who does not reside with his parents. The applicant's mother has significant health problems and his father, who is aged 75, has limited ability to assist in caring for the child. The parents of the applicant's partner also are said to have health problems. The grandparents are also said to be unable to assist financially in the rearing of the child. The matters in relation…

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 Haddad

Details

AGLC: R v Haddad [2009] QCA 143
Case: [2009] QCA 143
Decision Date: 28 May 2009

CaseChat Overview and Summary

The case of R v Haddad involved an appeal against sentence by the applicant, who had been convicted of a criminal offence. The central issue before the court was whether the original sentence should be altered in light of the applicant's unforeseen circumstances that arose post-conviction. Notably, the applicant was unaware that his partner was pregnant at the time of sentencing, and the child had since been cared for by the applicant's elderly parents, who faced both personal and financial difficulties. The applicant argued that these hardships warranted a variation of his sentence.

The court was required to determine whether the applicant's lack of knowledge about his partner's pregnancy at the time of sentencing constituted a sufficient ground for altering the sentence. The court also needed to assess whether the hardship experienced by the applicant's elderly parents in caring for the child should influence the original sentence. The legal principles governing appeals against sentence, particularly regarding the grounds for interference and the discretion of the court, were central to the court's deliberations.

In dismissing the application, the court held that the applicant's unawareness of his partner's pregnancy at the time of sentencing did not constitute a ground for altering the sentence. The court found that the applicant's circumstances, while regrettable, did not meet the stringent criteria required for a sentence variation. The court emphasised that the primary consideration in sentencing is the nature of the offence and the need for deterrence and rehabilitation, rather than the personal hardships of the offender or their family. The court's reasoning underscored the importance of maintaining the integrity of the sentencing process and the principle that sentences should not be altered based on post-sentencing developments, unless they are of a fundamental nature.

The application for sentence variation was dismissed. The court's decision highlighted the need for clear and stringent criteria when considering appeals against sentence, ensuring that personal hardships do not unduly influence the judicial process.

Orders

Orders of the court

Application Dismissed

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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CITATION:	R v Haddad [2009] QCA 143
PARTIES:	R v BACHAR HADDAD (applicant)
FILE NO/S:	CA No 69 of 2009 SC No 2 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	28 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2009
JUDGES:	Holmes JA, McMurdo and Applegarth JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application Dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant was not aware this his partner was pregnant at the date of sentence – where the child cared for by the applicant’s elderly parents with personal and financial difficulty – whether the original sentence should be varied due to the hardship on applicant’s family R v D’Arrigo; ex parte Attorney-General of Queensland[2004] QCA 399, cited R v MP [2004] QCA 170, cited The Queen v Wirth (1976) 14 SASR 291, cited
COUNSEL:	M Kriss for the applicant M B Lehane for the respondent
SOLICITORS:	Sydney Metropolitan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent