R v Haddad - [2001] QCA 171

[2001] QCA 171

COURT OF APPEAL

McMURDO P
McPHERSON JA
CHESTERMAN J

CA No 334 of 2000

THE QUEEN

BACHAR HADDAD Applicant

BRISBANE

..DATE 04/05/2001

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty to two counts of receiving commercial quantities of stolen cigarettes in the District Court at Maroochydore on 26 October 2000. He was sentenced on each count to five years' imprisonment to be suspended after serving a period of 15 months' imprisonment with an operational period of five years.

The applicant claims the sentence imposed was manifestly excessive and does not sufficiently distinguish between the sentence imposed on the co-accused, Clark, after taking into account the applicant's cooperation with the authorities. The applicant claims the appropriate sentence was one of four years' imprisonment suspended after nine or perhaps 12 months with an operational period of five years.

The applicant was the manager of a local nightclub where he met Clark, who was the ringleader of an organised crime gang involved with the theft of cigarettes from retail premises throughout the Sunshine Coast area. A group of young men stole the cigarettes at Clark's behest through breaking and entering and passed them on to Clark. Clark on-sold the cigarettes to the applicant. The offences spanned the period from June 1996 to December 1998.

The applicant was sentenced on the basis that he paid at least $40,000 for the cigarettes at $2 per pack and received approximately $100,000 worth of cigarettes during the period.

The applicant was 30 years old at the time of sentencing and 26 to 28 at the time the offences were committed. His only prior convictions were for minor drug matters in the Magistrates Court in 1994.

The applicant was apprehended after police had established a body of evidence against him. Later that day he made full and frank admissions about his involvement in the offences with Clark and later that day provided a statement implicating Clark. The applicant gave evidence at Clark's committal. He was the subject of news reports and was branded a "dog". He was fearful of the consequences of this whilst serving a prison sentence. The applicant was not required to give evidence at Clark's trial because Clark had pleaded guilty on the basis of his own admissions prior to the applicant's sentence. Section 13A Penalties and Sentences Act 1992 therefore had no operation in this case.

The applicant's frank admissions meant that the receiving counts to which he pleaded guilty spanned a longer period than that to which Clark pleaded guilty.

We are told that the applicant whilst serving his prison sentence is unable to take place in a WORC program whilst in custody because Clark is already involved in that program and he is fearful for his own safety.

The applicant's partner had a drug habit and he used the money from the offences to assist her. The applicant has suffered threats in the community since giving evidence against Clark at committal.

Clark pleaded guilty to 37 counts comprising 26…

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 [2001] QCA 171
Case: [2001] QCA 171
Decision Date: 04/05/2001

CaseChat Overview and Summary

The case of R v Haddad involved the applicant, Bachar Haddad, appealing against his sentence imposed by the District Court at Maroochydore. Haddad had pleaded guilty to two counts of receiving commercial quantities of stolen cigarettes. The applicant was sentenced to five years' imprisonment on each count, which was to be suspended after serving a period of 15 months' imprisonment, with an operational period of five years. The applicant argued that the sentence imposed was manifestly excessive and did not sufficiently distinguish between the sentence imposed on his co-accused, Clark, after considering his cooperation with the authorities.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether it did not sufficiently distinguish between the applicant's sentence and that of his co-accused, Clark, considering the applicant's cooperation with the authorities. The court had to determine if the sentence imposed was within the appropriate range and if it properly recognised any disparity between the applicant and his co-accused while also taking into account the applicant's cooperation with the authorities.

The Court of Appeal found that the sentence imposed was within the appropriate range and sufficiently recognised any disparity between the applicant and his co-accused, Clark, considering the applicant's cooperation with the authorities. The court compared the sentence imposed in this case with sentences from similar cases and found that the sentence in this case was plainly within the appropriate range. The court also noted that the applicant was not a youth and was acting as a professional receiver of goods which he knew were stolen in the course of break and enters for his own profit. The court concluded that the applicant could not argue that there was a justifiable sense of grievance on his part when his sentence was compared to that imposed on Clark, even taking into account his cooperation with the authorities.

The President, McPherson JA, and Chesterman J all agreed with the outcome of the case, and the application for leave to appeal against the sentence was refused. The final order was that the application for leave to appeal against sentence was refused.

Orders