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R v Kabir

R v Kabir

Case [2018] NSWDC 495 12 November 2018

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Kabir [2018] NSWDC 495
Hearing dates: 28 June 2018
Date of orders: 12 November 2018
Decision date: 12 November 2018
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [125]

Catchwords: CRIMINAL LAW – sentence – multiple offences – Commonwealth – dishonestly obtain a financial advantage
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017
Criminal Code (Cth)
Cases Cited: Conte v R [2018] NSWCCA 209
Hili v The Queen (2010) 242 CLR 520
Liu v R [2018] NSWCCA 70
Muldrock v The Queen (2011) 244 CLR 120
Noble v R [2018] NSWCCA 253
R v Anderson [1981] VR 155
R v Capper [2000] NSWCCA 63
R v Hinton (2002) 134 A Crim R 286
R v Rivkin (2004) 59 NSWLR 284
R v Togias (2001) 127 A Crim R 23
Veen v The Queen (No 2) (1988) 164 CLR 465
Xiao v R [2018] NSWCCA 4
Texts Cited: None
Category: Sentence
Parties: Regina (Crown)
Mohammed Kabir (Offender)
Representation:
Counsel:
Mr C O’Donnell SC (Crown)
Mr R Driels (Offender)
Solicitors:
CDPP (Crown)
Hanna Legal (Offender)

File Number(s): 2014/361898; 2014/363027
Publication restriction: None

Remarks on Sentence

Introduction

The Offender appears before the court for sentencing in relation to a number of charges, having pleaded guilty to the charges on the Crown Sentence Summary (Exhibit A). The two charges to which the Offender pleaded guilty are:

that between 29 November 2012 and 2 June 2014 in Sydney in the State of New South Wales, the Offender did deal with money or property that was and that he believed to be proceeds of crime. At the time of the dealing, the value of the money or property was $50,000 or more, namely $51,692.97 in breach of s 400.5(1) of The Criminal Code (Commonwealth); and

that between 7 March 2013 and 20 May 2014 at Sydney in the State of New South Wales the Offender did by a deception dishonestly obtain a financial advantage from the Commonwealth by causing to be lodged with the ATO sixteen income tax returns for the tax period 1 July 2012 to 30 June 2013, which falsely claimed tax refunds in the total sum of $22,475.18.

Guideposts

The maximum penalty represents the legislature’s assessment of the seriousness of the offence. In exercising its sentencing discretion the court must always arrived at an outcome that is just in all the circumstances. The following sentences apply to the offences for which the Offender has pleaded guilty and is today to be sentenced:

for the first offence, previously described, the maximum period of imprisonment is 15 years;

for the second offence, previously described, the maximum period of imprisonment is ten years.

There is also a s16BA matter that the Offender has requested that, in sentencing on the principal charges, the Court take into account those further offences for which the Offender has been charged but not convicted. The Offender has admitted guilt…

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 Kabir

Details

AGLC: R v Kabir [2018] NSWDC 495
Case: [2018] NSWDC 495
Decision Date: 12 November 2018

CaseChat Overview and Summary

The case of R v Kabir was heard in the High Court of Australia. The appellant, Kabir, was convicted for multiple instances of dishonestly obtaining a financial advantage in breach of Commonwealth legislation. The dispute centred on the appropriate sentence to be imposed for these multiple offences and whether they should be treated as a single offence for sentencing purposes. The appeal was concerned with the adequacy of the sentencing principles applied by the lower court.

The central legal issue before the court was whether the multiple offences committed by the appellant should be treated as a single offence for the purposes of sentencing, and if so, what implications this would have on the overall sentence. The court was required to consider the relevant statutory provisions and judicial precedents to determine the correct approach to sentencing in cases involving multiple similar offences.

The High Court held that the multiple offences should indeed be treated as a single offence for the purposes of sentencing. This conclusion was reached by examining the legislative intent behind the relevant provisions and the principles of sentencing as articulated in previous case law. The court emphasised the need for a proportionate and consistent approach to sentencing, particularly in cases involving serial offending. As a result, the sentence imposed by the lower court was deemed inadequate, and the matter was remitted for re-sentencing.

The final orders of the court included remitting the case back to the lower court for re-sentencing, taking into account the appropriate principles for sentencing multiple offences as a single offence. The court provided detailed guidance on how the lower court should approach the re-sentencing, ensuring that the overall punishment would be fair and proportionate to the gravity of the appellant's conduct.

Orders

Orders of the court

At [125]

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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Citations

R v Kabir [2018] NSWDC 495

Most Recent Citation

Kabir v The Queen [2020] NSWCCA 139

Cases Citing This Decision

Kabir v R [2020] NSWCCA 139
Citation 1

…restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v Kabir [2018] NSWDC 495 Date of Decision: 12 November 2018 Before: Wilson SC DCJ File Number(s): 2014/361898 and 2014/363027…

See all citing cases →

Cases Cited

Noble v R [2018] NSWCCA 253
Citation 1 (Para 98)

…I refer to the comments made in a dissenting judgment of Campbell J, in the matter of Noble v R [2018] NSWCCA 253, 9 November 2018, in which his Honour at [46] stated:…
Conte v R [2018] NSWCCA 209
Citation 2 (Para 101)

…ly an exercise in instinctive synthesis. I note the Court of Criminal Appeal reminded the sentencing judges of that recently in a matter of Conte v R [2018] NSWCCA 209. It involves the consideration of the purposes for sentencing in the context of weighing the objective gravity of the offending with the Offender’s o…
Jinde Huang Aka Wei Liu v R [2018] NSWCCA 70
Citation 3 (Para 113)

…ell as the facilitation of justice achieved by a guilty plea when considering the facts that an Offender has pleaded guilty. In the matter of Liu v R [2018] NSWCCA 70 Bathurst CJ, assisted sentencing judges by clarifying the approach should be adopted at [9]:…
Xiao v R [2018] NSWCCA 4
Citation 4 (Para 113)

…I am mindful of the decision of Xiao v R [2018] NSWCCA 4 at [269]-[278] where it was held by the bench of five in the Court of Criminal Appeal that s16A(2)(g) requires a court to take into account the utilitarian value of a guilty plea as well as the facilitation of justice achieved by a guilty plea when consideri…
Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCCA 320
Citation 5 (Para 66)

…e the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]; Skelton v R [2015] NSWCCA 320 at [141].…
Lam v R [2015] NSWCCA 143
Citation 6 (Para 62)

…The Crown drew the Court’s attention to the decision of the Court of Criminal Appeal in the matter of Lamb v R [2015] NSWCCA 143 where the Court in some detail commencing at [75] set out the concerns about a psychologist expressing psychiatric opinions.…
Aslan v R [2014] NSWCCA 114
Citation 7 (Para 71)

…In Aslan v R [2014] NSWCCA 114, Simpson J at 34 observed four principles that relate to how a mental health condition impacts on the objective seriousness of criminal offending. Simpson J stated that:…
R v Hinchliffe [2013] NSWCCA 327
Citation 8 (Para 109)

…ing with that matter and correctly identified that the comments of Johnson J, with whom Leeming JA and Hall J agreed in the matter of Hinchcliffe v R [2013] NSWCCA 327, where it was stated that:…
Muldrock v The Queen [2011] HCA 39
Citation 9 (Para 65)

…ducing a person’s moral culpability in matters such as general deterrence retribution and denunciation may have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354.…
Hili v The Queen [2010] HCA 45
Citation 10 (Para 99)

…His Honour relied upon the High Court’s decision in Hili v The Queen (2010) 242 CLR 520. In support of that proposition, he quoted the following extract from Hili at [63]:…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 11 (Para 66)

…This is especially so where the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]; Skelton v R [2015] NSWCCA 320 at [141].…
R v Rivkin [2003] NSWSC 447
Citation 12 (Para 84)

…mmit the offence. That topic was recently discussed I recall by the Court of Criminal Appeal, but it is fully explained in the decision of R v Rivkin (2004) 59 NSWLR 284. Given the circumstances, I decline to afford leniency based on good character.…
R v Israil [2002] NSWCCA 255
Citation 13 (Para 65)

…matters such as general deterrence retribution and denunciation may have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354.…
R v Capper [2000] NSWCCA 63
Citation 14 (Para 92)

…As an example circumstances were held to be not exceptional in the matter of R v Capper [2000] NSWCCA 63 where the incarceration in that case of the Offender caused his children for whom he had sole care to become wards of the state and to reside with foster parents.…
R v Henry [1999] NSWCA 111
Citation 15 (Para 65)

…tribution and denunciation may have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 16 (Para 68)

…e application of the particular facts and circumstances of the case to the purpose of criminal punishment as set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at 488.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
1 mention
Crimes Act 1914 (Cth)
1 mention

Medium Neutral Citation:	R v Kabir [2018] NSWDC 495
Hearing dates:	28 June 2018
Date of orders:	12 November 2018
Decision date:	12 November 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [125]
Catchwords:	CRIMINAL LAW – sentence – multiple offences – Commonwealth – dishonestly obtain a financial advantage
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 Criminal Code (Cth)
Cases Cited:	Conte v R [2018] NSWCCA 209 Hili v The Queen (2010) 242 CLR 520 Liu v R [2018] NSWCCA 70 Muldrock v The Queen (2011) 244 CLR 120 Noble v R [2018] NSWCCA 253 R v Anderson [1981] VR 155 R v Capper [2000] NSWCCA 63 R v Hinton (2002) 134 A Crim R 286 R v Rivkin (2004) 59 NSWLR 284 R v Togias (2001) 127 A Crim R 23 Veen v The Queen (No 2) (1988) 164 CLR 465 Xiao v R [2018] NSWCCA 4
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Mohammed Kabir (Offender)
Representation:	Counsel: Mr C O’Donnell SC (Crown) Mr R Driels (Offender) Solicitors: CDPP (Crown) Hanna Legal (Offender)
File Number(s):	2014/361898; 2014/363027
Publication restriction:	None