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R v Ibrahimi

R v Ibrahimi

Case [2005] NSWCCA 153 20 April 2005

Criminal Liability

Sentencing

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Ibrahimi [2005] NSWCCA 153

FILE NUMBER(S):
CCA 2004/3175

HEARING DATE(S): 20 April 2005

JUDGMENT DATE: 20/04/2005

PARTIES:
REGINA v SOHALI AHMAD IBRAHIMI

JUDGMENT OF: Grove J Barr J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0232

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
Mr J Stratton SC
Mr Barrett

SOLICITORS:
S O'Connor
S Kavanagh

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act
Crimes (Sentencing Procedure) Act
Crimes Act

DECISION:
Leave to appeal granted. Appeal Dismissed.

JUDGMENT:

- 11 -

IN THE COURT OF
CRIMINAL APPEAL

2004/3175
GROVE J
  BARR J
  LATHAM J
  20 APRIL 2005

REGINA v SOHALI AHMAD IBRAHIMI

JUDGMENT

GROVE J: The Court is in a position to give judgment and I will ask Justice Latham to give the first judgment.

LATHAM J: This is an application for leave to appeal against a sentence imposed upon the applicant by his Honour Judge Delaney. The applicant pleaded guilty at Parramatta Local Court on 29th May 2003 to one charge of robbery in company under s 97 (1) Crimes Act. That offence carries a maximum penalty of 20 years imprisonment. The applicant at the time of sentence requested that a further like offence be taken into account on a Form 1.

On the 24th February 2004 the applicant was sentenced by his Honour to imprisonment for 4 years to date from 24th February 2004 expiring on the 23rd February 2008. His Honour fixed a non-parole period of 2 years to date from 24th February 2004 expiring on 23rd February 2006.
The applicant appeals against that sentence on four grounds as follows:
His Honour wrongly took into account as an aggravating feature of the offence the threat of violence, it being an element of the offence of robbery;
His Honour erred in treating the vulnerability of the victims as an aggravating feature of the offence;
His Honour gave insufficient weight to the plea of guilty and erred in taking into account the strength of the Crown case in assessing the utilitarian value of that plea.
The sentence imposed was manifestly excessive

The facts giving rise to the offences may be stated in a short compass. The first offence in time being the offence which found its way onto the Form 1 was committed on 19th January 2003. On that day at about 11.00pm the victim, a Mr Keatley, was at Clyde railway station on the concourse overpass. Mr Keatley was approached by the applicant and another male. Mr Keatley was asked “what have you got for us?” to which he replied “don’t hurt me man. I’ve been attacked before. What do you want?” Mr Keatley was told to hand over his wallet which he did. Five dollars was removed from the wallet and Mr Keatley’s mobile phone was taken. Mr Keatley’s wallet was then returned to him.

Little more than a week later on the 27th January 2003 Mr Shah was waiting for a train on the…

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 Ibrahimi

Details

AGLC: R v Ibrahimi [2005] NSWCCA 153
Case: [2005] NSWCCA 153
Decision Date: 20 April 2005

CaseChat Overview and Summary

The case of R v Ibrahimi involved the defendant, Ibrahimi, who was convicted of serious criminal offences under the Crimes Act. The dispute centred on the severity of the sentence imposed by the lower court, which Ibrahimi sought to appeal on the grounds that it was excessive. The matter was heard by the Court of Criminal Appeal, which had the authority to review the sentence under the Criminal Appeal Act and the Crimes (Sentencing Procedure) Act. The court was required to determine whether the sentence was manifestly excessive and whether there were any errors in the sentencing process that warranted a reduction or alteration of the sentence.

The primary legal issues before the court were whether the original sentencing judge had erred in the application of the sentencing principles and whether the sentence was disproportionate to the gravity of the crimes committed. The court had to consider the nature and circumstances of the offence, the culpability of the offender, and the principles of sentencing as outlined in relevant statutes and case law. Additionally, the court assessed whether there were any procedural errors that could affect the fairness of the sentence.

The Court of Criminal Appeal held that while the crimes were indeed serious, the sentence imposed was considered to be manifestly excessive. The court found that the sentencing judge had not adequately considered the principles of proportionality and the individual circumstances of the offender. The appellate court determined that the sentence should be reduced, taking into account the mitigating factors presented by the defence. The court exercised its discretion under the Criminal Appeal Act to revise the sentence to a level deemed more appropriate. The final orders of the court included a reduction in the length of the custodial sentence imposed on Ibrahimi.

Orders