Legal Research
Cases
R v Haji-Noor

R v Haji-Noor

Case [2007] NTCCA 7 18 May 2007

Type to search within this case.

The Queen v Haji–Noor [2007] NTCCA 7
PARTIES:THE QUEEN

v
HAJI–NOOR, RAMILE ROBERT

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 15/2006 (20603584)
DELIVERED:  18 MAY 2007
HEARING DATES:  2 MARCH 2007
JUDGMENT OF:  ANGEL, MILDREN, THOMAS, RILEY
& SOUTHWOOD JJ

APPEAL FROM: MARTIN (BR) CJ – SENTENCE ON
2 AUGUST 2006

CATCHWORDS:

Criminal Law – offences against the person – intentionally cause grievous harm – Crown appeal against sentence – manifestly inadequate
Criminal Law – offences against the person – aggravated assault – domestic violence – history of offending – Crown appeal against sentence – manifestly inadequate
Criminal Law – sentencing – Crown appeal against sentence – multiple offences – concurrency of sentence – reflection of overall criminal conduct – principle of totality
Criminal Law – sentencing – general principles – proportionality – prior criminal history – relevance

Criminal Law – sentencing – Crown appeal against sentence – restoration of suspended sentence – failure to fix non-parole period in relation to – whether a “sentence of imprisonment” – “Sentencing order” – Sentencing Act (NT) s 7(g), 43(5), 53

Statutes Referred to:
Criminal Code (NT) s 177(a), 188(1), 188(2)(a), 188(2)(b), 188(2)(m), 410
Misuse of Drugs Act (NT) s 9(1), 9(2)(f)(i)
Sentencing Act (NT) s 5, 5(2)(e), 6, 6A, 7, 7(g), 7(k), 40, 40(5), 40(8), 42, 42(1), 43, 43(1), 43(4A), 43(5), 43(5)(c), 43(5)(d), 43(5)(e), 43(5)(ea) 43(5)(f), 43(6), 43(7), 53, 53(1), 53(1)(b), 53(2), 53A, 54, 55, 55A, 57, 113
Supreme Court Act (NT) s 21

Cases Cited:
Botany Municipal Council v Jackson (1985) 2 NSWLR 1
Cranssen v The King (1936) 55 CLR 509
Director Of Public Prosecutions v Grabovac (1998) 1 VR 664
Glenn v Dixon [2005] NTSC 33
Iddon & Crocker (1987) 32 A Crim R 315
Kennedy v Spratt [1972] AC 83
Kotis v R [2005] NTCCA 13
Markarian v R (2005) 79 ALJR 1048
R v Carngham (1978) 140 CLR 487
R v Governor of Pentridge; Ex parte Arthur [1979] VR 304
R v Hardy [1946] NZLR 22
R v Harman [1959] 2 QB 134
R v Hayden [1975] 1 WLR 852
R v Jones [1929] 1 KB 211
R v McNaughton (2006) 163 A Crim R 381
R v Newton [1973] 1 WLR 233; [1973] 1 All ER 758
R v Osenkowski (1982) 30 SASR 212
R v Riley (2006) 161 A Crim R 414
R v Shrestha (1990-1991) 173 CLR 48
R v Walsh (1999) SCC 9620407
R v Wright & Pope [1980] VR 41
The Queen v Inkamala [2006] NTCCA 11
The Queen v Stephen Day [2004] NTCCA 2
Veen No 2 (1988) 164 CLR 465
Walker v The Queen [2001] NTSC 69
Weininger v The Queen (2003) 212 CLR 629
Winsor v Boaden (1953) 90 CLR 345
Ziderman v Dental Council [1976] 1 WLR 330 (PC)

REPRESENTATION:
Counsel:
Appellant:R Coates with Dr N Rogers
Respondent: S Cox QC with R Goldflam
Solicitors:
Appellant:Office of the Director of Public…

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 Haji-Noor

Details

AGLC: R v Haji-Noor [2007] NTCCA 7
Case: [2007] NTCCA 7
Decision Date: 18 MAY 2007

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Mr Haji-Noor, by the Supreme Court of South Australia. The respondent had been convicted of intentionally causing grievous harm and aggravated assault. The appeal concerned the length of the sentence for the grievous harm charge.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the original sentence for intentionally causing grievous harm was manifestly inadequate, thereby justifying a Crown appeal against sentence. The court was required to consider the principles governing appeals against sentence and to determine an appropriate sentence having regard to the gravity of the offence and the respondent's criminal history.

The Full Court reasoned that the sentencing judge had erred in failing to give sufficient weight to the objective seriousness of the offence of intentionally causing grievous harm and the respondent's prior convictions for similar violent offences. The court applied the principle that sentences must reflect the gravity of the offence and serve the purposes of punishment, deterrence, and rehabilitation. In light of these considerations, the court found the original sentence to be manifestly inadequate.

The appeal was allowed. The 7 years and 6 month sentence for intentionally causing grievous harm was set aside and replaced with a sentence of 12 years imprisonment. The appeal against the sentence for aggravated assault was dismissed. The sentences for all charges were ordered to be served concurrently, with a total effective sentence of 12 years imprisonment and a non-parole period of 6 years and 6 months, back-dated to 5 February 2006.

Orders

Orders of the court

1. The appeal is allowed and the 7 years and 6 month sentence with respect of the intentionally causing grievous harm charge is set aside; 2. The respondent is resentenced to 12 years imprisonment in respect of the intentionally causing grievous harm charge; 3. The appeal from the 2 years and 6 month sentence with respect of the aggravated assault charge is dismissed; 4. The 12 year sentence with respect to the intentionally causing grievous harm charge, the 2 years and 6 month sentence with respect to the aggravated assault charge and the 9 month sentence with respect to the cannabis charge be served concurrently; 5. The respondent is to serve 12 months of the 15 month restored sentence before serving the sentences in 4 above; 6. Fix a non-parole period of 6 years and 6 months, the sentence and non-parole period are back-dated to commence on 5 February 2006.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

RILEY J THOMAS J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: RILEY J, THOMAS J

Full text does not contain this section.

Citations

AGLC Citation

R v Haji-Noor [2007] NTCCA 7

Most Recent Citation

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436

Cases citing this decision · 8 of 8 shown

The State of Western Australia v Haji-Noor
[2023] WASC 145 Para 7

…timately sentenced to a total of 13 years imprisonment, with a non‑parole period fixed at 6 years and 6 months.[13] [13] The Queen v Haji-Noor [2007] NTCCA 7.…
Pattinson v Australian Building and Construction Commissioner
[2020] FCAFC 177 Para 18

…In Ellis v The Queen [2005] NTCCA 1; 154 A Crim R 450 at 455, R v Tyday [2006] NTSC 29 at [12] and R v Haji-Noor [2007] NTCCA 7; 21 NTLR 127, Angel J maintained his views.…
Nicholson v Andreou
[2018] NTSC 40 Para 39

…[23] Weininger v The Queen (2003) 212 CLR 629 at [32]; cited by Angel J in The Queen v Haji-Noor [2007] NTCCA 7 at [39].…
Emitja v The Queen
[2016] NTCCA 4

…2001) 206 CLR 267, Sullivan v R (1987) 47 NTR 31, Taylor v Malagorski [2011] NTSC 98, The Queen v Haji-Noor [2007] NTCCA 7, The Queen v J O [2009] NTCCA 4, The Queen v Shrestha (1990-1991) 173 CLR 48, Thomas v Mowbray (2007) 233 CLR 307, Veen v The Queen (1979) 143 CLR 458, Walden v Hensler (1987) 61 ALJR 646, We…
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2)
[2016] FCA 436

…a (No 3) [1998] HCA 30; 195 CLR 1 R v Bukvic [2010] SASC 195; 107 SASR 405 R v Haji-Noor [2007] NTCCA 7; 21 NTLR 127 R v Hathaway [2005] NSWCCA 368 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41; 176 FCR 53 Saeed v Minister for Immigration and Citiz…
Waters v James
[2014] NTSC 37 Para 89

…[8]See for example R v Haji-Noor (2007) 21 NTLR 12 ( R v Haji-Noor ) at [89], [92] and [142].…
Tritton v R and Birchall v R
[2012] NTCCA 12

…R v Haji-Noor [2007] NTCCA 7; R v Nadich [2012] NTCCA 4; R v Tait and Bartley (1979) 46 FLR 386, followed. REPRESENTATION: Counsel for Tritton: Appellant: J Tippett QC Respondent: MJ McColm Solicitors for Tritton: Appellant: Maleys Barristers & Solicitors Respondent: Office of the Director of Public Prosecutions…
R v Puruntatameri; R v Anthony
[2007] NTSC 62 Para 4

…d. A difference of view on this issue was settled by a specially convened Court of Criminal Appeal comprised of five Judges in The Queen v Haji- Noor [2007] NTCCA 7. By a majority the Court held that s 53 applies in these circumstances and followed the earlier decision of the Full Court in Walker v The Queen [200…

View all 8 citing cases →

Cases cited in this decision · 21 of 21 shown

R v WALSH
[2012] SASCFC 14 Para 1

…ion of Walker v The Queen (supra) was followed by Riley J in Glenn v Dixon [2005] NTSC 33 and is consistent with the earlier decision of Kearney J in R v Walsh (1999) SCC 9620407.…
R v Inkamala
[2006] NTCCA 11 Para 5

…pect of the restored sentence of 15 months the learned sentencing Judge acted in accordance with the decision of this Court in The Queen v Inkamala [2006] NTCCA 11, but contrary to the earlier decision of this Court in Walker v R [2001] NTSC 69.…
Kotis v The Queen
[2005] NTCCA 13 Para 18

…ffences it is appropriate to order concurrency to achieve a just result: Director Of Public Prosecutions v Grabovac (1998) 1 VR 664 at 680; Kotis v R [2005] NTCCA 13 at [43] and [44]. His Honour was obliged to consider the issue of totality and he applied that principle in determining that the sentences should be…
Glenn v Dixon
[2005] NTSC 33 Para 1

…The decision of Walker v The Queen (supra) was followed by Riley J in Glenn v Dixon [2005] NTSC 33 and is consistent with the earlier decision of Kearney J in R v Walsh (1999) SCC 9620407.…
Markarian v The Queen
[2005] HCA 25 Para 2

…ausing grievous harm charge was manifestly inadequate, particularly given the maximum penalty for that offence is life imprisonment; cf Markarian v R (2005) 79 ALJR 1048 at 1056 [30][31]. The attack upon the male victim was unprovoked, premeditated, protracted, cowardly and vicious. It was carried out with great delib…
R v Osenkowski
[2005] SASC 142 Para 10

…must be so manifestly inadequate as to demonstrate that error in point of principle must have occurred. The observations of King CJ in R v Osenkowski (1982) 30 SASR 212 at 213 are apposite: “The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of pu…
R v Day
[2004] NTCCA 2 Para 23

…ievous harm, caused grievous harm to Paul Ellis was manifestly inadequate: Markarian v The Queen (2005) 79 ALJR 1048 at 1055; The Queen v Stephen Day [2004] NTCCA 2 at par [54] per Mildren J; Cranssen v The King (1936) 55 CLR 509; R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ. I would allow the appeal on t…
Weininger v The Queen
[2003] HCA 14 Para 9

…th respect, to be inconsistent with the following passage from the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Weininger v The Queen (2003) 212 CLR 629 at 640[32], viz : “A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily…
Walker v The Queen
[2001] NTSC 69 Para 5

…ccordance with the decision of this Court in The Queen v Inkamala [2006] NTCCA 11, but contrary to the earlier decision of this Court in Walker v R [2001] NTSC 69.…
R v Shrestha
[1991] HCA 26 Para 27

…is an important sentencing consideration. The purposes of the parole system were explained by Deane, Dawson and Toohey JJ in R v Shrestha (1990-1991) 173 CLR 48 at pp 67-68: “The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the pa…
Veen v The Queen (No 2)
[1988] HCA 14 Para 7

…on therefore a nexus between the current offence and the prior offending. Contra, per McClellan CJ at CL in McNaughton, supra, at [63], Veen No 2 (1988) 164 CLR 465 confirmed rather than rejected the principle that a prior criminal record may inform the moral culpability of an offender for the instant offence.…
R v Carngham
[1978] HCA 48 Para 5

…v Harman [1959] 2 QB 134; Kennedy v Spratt [1972] AC 83; R v Newton [1973] 1 WLR 233; [1973] 1 All ER 758; R v Hayden [1975] 1 WLR 852; R v Carngham (1978) 140 CLR 487; R v Governor of Pentridge; Ex parte Arthur [1979] VR 304 and R v Wright & Pope [1980] VR 41.…
Winsor v Boaden
[1953] HCA 46 Para 5

…minal. Its meaning depends on the context in which it is used: Botany Municipal Council v Jackson (1985) 2 NSWLR 1 at 8D per Kirby J; Winsor v Boaden (1953) 90 CLR 345; R v Jones [1929] 1 KB 211; R v Hardy [1946] NZLR 22 at 23; R v Harman [1959] 2 QB 134; Kennedy v Spratt [1972] AC 83; R v Newton [1973] 1 WLR 233; […
Cranssen v the King
[1936] HCA 42 Para 23

…inadequate: Markarian v The Queen (2005) 79 ALJR 1048 at 1055; The Queen v Stephen Day [2004] NTCCA 2 at par [54] per Mildren J; Cranssen v The King (1936) 55 CLR 509; R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ. I would allow the appeal on this ground.…
[1976] 1 WLR 330
[1976] 1 WLR 330 Para 8

…The reasons for decision in McNaughton, with respect, do not satisfy me that Lord Diplock in Ziderman v Dental Council [1976] 1 WLR 330 (PC) at 334 was wrong when he said that “an offence which is committed by a person who has offended before is graver than a similar offence committed by a person who offends for th…
[1929] 1 KB 211
[1929] 1 KB 211 Para 5

…the context in which it is used: Botany Municipal Council v Jackson (1985) 2 NSWLR 1 at 8D per Kirby J; Winsor v Boaden (1953) 90 CLR 345; R v Jones [1929] 1 KB 211; R v Hardy [1946] NZLR 22 at 23; R v Harman [1959] 2 QB 134; Kennedy v Spratt [1972] AC 83; R v Newton [1973] 1 WLR 233; [1973] 1 All ER 758; R v Hay…
[1946] NZLR 22
[1946] NZLR 22 Para 5

…used: Botany Municipal Council v Jackson (1985) 2 NSWLR 1 at 8D per Kirby J; Winsor v Boaden (1953) 90 CLR 345; R v Jones [1929] 1 KB 211; R v Hardy [1946] NZLR 22 at 23; R v Harman [1959] 2 QB 134; Kennedy v Spratt [1972] AC 83; R v Newton [1973] 1 WLR 233; [1973] 1 All ER 758; R v Hayden [1975] 1 WLR 852; R v…
[1959] 2 QB 134
[1959] 2 QB 134 Para 5

…Jackson (1985) 2 NSWLR 1 at 8D per Kirby J; Winsor v Boaden (1953) 90 CLR 345; R v Jones [1929] 1 KB 211; R v Hardy [1946] NZLR 22 at 23; R v Harman [1959] 2 QB 134; Kennedy v Spratt [1972] AC 83; R v Newton [1973] 1 WLR 233; [1973] 1 All ER 758; R v Hayden [1975] 1 WLR 852; R v Carngham (1978) 140 CLR 487; R v G…
[1972] AC 83
[1972] AC 83 Para 5

…r Kirby J; Winsor v Boaden (1953) 90 CLR 345; R v Jones [1929] 1 KB 211; R v Hardy [1946] NZLR 22 at 23; R v Harman [1959] 2 QB 134; Kennedy v Spratt [1972] AC 83; R v Newton [1973] 1 WLR 233; [1973] 1 All ER 758; R v Hayden [1975] 1 WLR 852; R v Carngham (1978) 140 CLR 487; R v Governor of Pentridge; Ex parte…
[1973] 1 WLR 233
[1973] 1 WLR 233 Para 5

…n (1953) 90 CLR 345; R v Jones [1929] 1 KB 211; R v Hardy [1946] NZLR 22 at 23; R v Harman [1959] 2 QB 134; Kennedy v Spratt [1972] AC 83; R v Newton [1973] 1 WLR 233; [1973] 1 All ER 758; R v Hayden [1975] 1 WLR 852; R v Carngham (1978) 140 CLR 487; R v Governor of Pentridge; Ex parte Arthur [1979] VR 304 and R v…
[1975] 1 WLR 852
[1975] 1 WLR 852 Para 5

…v Hardy [1946] NZLR 22 at 23; R v Harman [1959] 2 QB 134; Kennedy v Spratt [1972] AC 83; R v Newton [1973] 1 WLR 233; [1973] 1 All ER 758; R v Hayden [1975] 1 WLR 852; R v Carngham (1978) 140 CLR 487; R v Governor of Pentridge; Ex parte Arthur [1979] VR 304 and R v Wright & Pope [1980] VR 41.…

Legislation cited in this decision · 0

No legislation cited in this case.