R v Jebara - [2020] NSWDC 182

District Court

New South Wales

Medium Neutral Citation: R v Jebara [2020] NSWDC 182
Hearing dates: 6 April 2020
Date of orders: 06 April 2020
Decision date: 06 April 2020
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
An aggregate sentence of imprisonment of 4 years. A non-parole period of 2 years and 6 months.

Catchwords:
CRIME — Property offences — Break and enter with intent to commit serious indictable offence

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence

SENTENCING — Relevant factors on sentence — Form 1 offences – Stalk/intimidate

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences – Guilty plea
SENTENCING — Subjective considerations on sentence — Special circumstances – Drug addition
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007, s 13
Crimes (Sentencing Procedure) Act 1999, s 3A, s 5
Cases Cited: Andrew Smith v R [2013] NSWCCA 209
McGoldrick v Regina [2012] NSWCCA 7
R v Brewster [1998] 1 Cr App R 220
R v Huynh [2005] NSWCCA 220
Category: Sentence
Parties: Regina
Allam Jebara
Representation:
Counsel:
Mr B Hancock (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Karim and Nicol Lawyers (Offender)

File Number(s): 2019/32408; 2019/32418
Publication restriction: None

Judgment on sentence

Allam Jebara appears, represented, by AVL from custody for sentence before the Court today. He has pleaded guilty to five charges involving unlawful entry: two of break and enter a dwelling house and stealing property, both of which carry a maximum penalty of fourteen years’ imprisonment; one offence of break and enter a dwelling house with intent to steal and one of entering a dwelling house with intent to commit an indictable offence, both of which carry maximum penalties of ten years’ imprisonment; and an offence of entering land or buildings with intent to commit an indictable offence, which carries a maximum penalty of seven years. The last offence mentioned, that is, the entry into the land and buildings without consent to commit an indictable offence, involved a younger co-offender who, after spending eight months in custody, was given a twelve-month Community Corrections Order as her sentence.
In Count 1 on 17 January 2019, Mr Jebara entered a residential granny flat in Granville by opening a window and removing a fly-wire screen, using a garbage bin for elevation. The resident victim was not home at the time. Mr Jebara opened all of the victim’s bedroom drawers and took with him jewellery, a 13” Apple MacBook Air in a blue case, a pair of Tiffany & Co sunglasses and $2,000. The victim on arriving home called the police and Mr Jebara’s fingerprints were found on the window frame.
In Count 2, on 30 January 2019 at about 7.30am with a 20-year-old female co-offender, Mr Jebara rang the bell and knocked on the door of a house in Merrylands. The residents of the house comprised the victim, his wife and three daughters. At 7.40am, the 15-year-old daughter came downstairs and noticed Mr…

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 Jebara

Details

AGLC: R v Jebara [2020] NSWDC 182
Case: [2020] NSWDC 182
Decision Date: 06 April 2020

CaseChat Overview and Summary

The appellant, Jebara, was convicted of break and enter with intent to commit a serious indictable offence, and of entering a dwelling-house with intent to commit a serious indictable offence. The facts were not in dispute. The appellant had a history of stalking and intimidation towards the victim, and had broken into the victim's home with intent to commit a serious indictable offence. The appellant was sentenced to an aggregate sentence of imprisonment of 4 years, with a non-parole period of 2 years and 6 months. The appellant appealed against sentence.

The legal issue before the court was whether the sentence was manifestly excessive. The court noted that the appellant had a history of stalking and intimidation towards the victim, and that the break and enter offence was an aggravated form of burglary. The court also noted that the appellant had pleaded guilty, which was a mitigating factor. The court further noted that the appellant had a drug addiction, which was a special circumstance that could be taken into account when sentencing.

The court held that the sentence was not manifestly excessive. The court noted that the appellant's history of stalking and intimidation towards the victim was a significant aggravating factor, and that the break and enter offence was an aggravated form of burglary. However, the court also noted that the appellant had pleaded guilty, which was a mitigating factor. The court further noted that the appellant's drug addiction was a special circumstance that could be taken into account when sentencing. The court held that the sentence was appropriate in all the circumstances.

The court dismissed the appeal against sentence. The original sentence of imprisonment of 4 years, with a non-parole period of 2 years and 6 months, was upheld.

Orders

Orders of the court

An aggregate sentence of imprisonment of 4 years. A non-parole period of 2 years and 6 months.

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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Medium Neutral Citation:	R v Jebara [2020] NSWDC 182
Hearing dates:	6 April 2020
Date of orders:	06 April 2020
Decision date:	06 April 2020
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	An aggregate sentence of imprisonment of 4 years. A non-parole period of 2 years and 6 months.
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence SENTENCING — Relevant factors on sentence — Form 1 offences – Stalk/intimidate SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences – Guilty plea SENTENCING — Subjective considerations on sentence — Special circumstances – Drug addition
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007, s 13 Crimes (Sentencing Procedure) Act 1999, s 3A, s 5
Cases Cited:	Andrew Smith v R [2013] NSWCCA 209 McGoldrick v Regina [2012] NSWCCA 7 R v Brewster [1998] 1 Cr App R 220 R v Huynh [2005] NSWCCA 220
Category:	Sentence
Parties:	Regina Allam Jebara
Representation:	Counsel: Mr B Hancock (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Karim and Nicol Lawyers (Offender)
File Number(s):	2019/32408; 2019/32418
Publication restriction:	None