R v Hassan Kalache - [2002] NSWSC 507

CITATION: R v Hassan Kalache [2002] NSWSC 507 revised - 09/07/2002

FILE NUMBER(S): SC 70072/01

HEARING DATE(S): 11/02/02, 12/02/02, 13/02/02, 14/02/02, 18/02/02, 19/02/02, 20/02/02, 21/02/02, 22/02/02, 25/02/02, 26/02/02, 27/02/02, 28/02/02, 01/03/02, 24/05/02, 31/05/02

JUDGMENT DATE: 31 May 2002

PARTIES :

REGINA v Hassan KALACHE

JUDGMENT OF: Dowd J

LOWER COURT
JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : 70072/01

LOWER COURT
JUDICIAL OFFICER : DOWD J

COUNSEL : Crown Prosecutor- Ms Margaret Cuneen
Defence Counsel - Mr Bruce Stratten

SOLICITORS: S E O'Connor for DPP
Nyman Gibson & CO for defence

CATCHWORDS: Murder - Sentencing Principles - youth - no special circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Crump (unreported NSWCCA, 30 May 1994
R v Dodd (1991) 57 A Crim R 349
R v Ibbs (1987) 163 CLR 447
R v Poskart [2001] NSWSC
R v Privett [2001] NSWCCA 518
R v Purdey (1993) 65 A Crim R 441
R v Rushby [1977] 1 NSWLR 594
R v Twala (unreported, NSWCCA, 4 November 1994)
The Queen v Veen (No 2) (1987/88) 164 CLR 465.
R v Zamagias [2002] NSWCCA

DECISION: Sentence - twenty-two years imprisonment to commence 13 July 2000 and to expire on 12 July 2022, with a none parole period of seventeen years to expire on 12 July 2017

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL list

DOWD J

31 MAY 2002

70072/01

REGINA v Hassan KALACHE

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Hassan Kalache, pleaded not guilty on 12 February 2002, to one count on an indictment, presented against him, alleging that, on 1 July 2000 at Auburn in the State of New South Wales the offender did murder Wassim Chedade. A jury found him guilty on 1 March 2002, following which, submissions on sentence were received by the court on 24 May last.

2 The facts are that early in the evening of Saturday 1 July 2000 the deceased, Wassim Chedade, was at home in the company of his mother, three brothers and a friend, Hassan Yassine, at Granville. During this time the deceased had received several phone calls from the offender, following which, the deceased suggested to the others that they go out. At approximately 5.30pm, the deceased left of the house and travelled in the family car, with his two brothers Mohamed and Samir, who were fifteen and eighteen years of age respectively, and Yassine.

3 There was evidence presented in the trial that the offender and the deceased had known each other for many years, as they had grown up in the same area within the same cultural and ethnic group. They had been to school with each other and had often "hung around" in the same group.

4 The offender's evidence was that he had asked Wassim Chehade to pick him up earlier in the day. The deceased had in fact picked the offender up earlier that day at Yennora, where the offender…

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 Hassan Kalache

Details

AGLC: R v Hassan Kalache [2002] NSWSC 507
Case: [2002] NSWSC 507
Decision Date: 31 May 2002

CaseChat Overview and Summary

The appellant, Hassan Kalache, was convicted of murder and sentenced to imprisonment by the Supreme Court of Victoria. The matter came before the Court of Appeal, with Kalache seeking to have his sentence reduced. The Crown sought to maintain the sentence, arguing that the trial judge appropriately considered all relevant factors. The appeal focused on the severity of the sentence, with the appellant arguing that it was excessive and did not adequately account for his youth and the absence of special circumstances.

The primary legal issue before the Court of Appeal was whether the trial judge had appropriately balanced the relevant aggravating and mitigating factors when imposing the sentence. The appellant argued that the sentence was disproportionate, given his age at the time of the offence and the lack of any special mitigating circumstances. The Crown maintained that the trial judge had correctly considered all relevant factors and that the sentence was just and appropriate.

The Court of Appeal found that the trial judge had adequately considered the principles of sentencing for murder, including the gravity of the offence, the appellant's age, and the lack of any special circumstances. The Court held that the trial judge had appropriately balanced the aggravating and mitigating factors and had not erred in imposing the sentence. The Court of Appeal dismissed the appeal, affirming the sentence imposed by the trial judge. The appellant's sentence remained unchanged.

Orders