R v Maarbani - [2001] NSWCCA 509

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Maarbani [2001] NSWCCA 509

FILE NUMBER(S):
60447/00

HEARING DATE(S): 17 October 2001

JUDGMENT DATE: 13/12/2001

PARTIES:

Regina
Brian Maarbani

JUDGMENT OF: Wood CJ at CL Grove J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/41/0085

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

COUNSEL:
W Dawe QC
B. Brassil (Sol)

SOLICITORS:
S E O'Connor

CATCHWORDS:
CRIMINAL LAW - appeals - appeal against sentence - maliciously inflict grievous bodily harm - supply prohibited drug - whether sentence manifestly excessive - offence not trivial and sentence properly reflected totality of criminality involved - applicant developed condition of idiopathic epilepsy while in prison - whether illness present at time of sentencing, although quiescent - ill health will be a factor tending to mitigate punishment only where it appears that imprisonment will be a greater burden on the offender by reason of his state of health - imprisonment likely to exacerbate condition of applicant - special circumstances found to exist to justify intervention - reduction in non-parole period only.

LEGISLATION CITED:

DECISION:
Appeal allowed. New non-parole period set

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60447 of 2000
WOOD CJ AT CL
GROVE J

THURSDAY 13TH DECEMBER 2001
REGINA V BRIAN MAARBANI
Judgment

WOOD CJ AT CL: The applicant seeks leave to appeal against the severity of a sentence imposed upon him by Judge J B Phelan, in the District Court at Wollongong, on 11 July 2000.
His Honour had before him, on that occasion, an appeal from the Local Court at Wollongong, against a sentence of six months imprisonment for breach of a Community Service Order, which had been imposed for an offence of maliciously inflict grievous bodily harm; as well as one count on an indictment for a charge of supplying the prohibited drug methylamphetamine.
In relation to the last mentioned matter, seven further offences were taken into account on a form 1, comprising offences of driving while disqualified, cultivation of cannabis plants, drive in a manner dangerous, negligent driving, driving an unregistered and unlicensed vehicle, and negligent driving. The six month sentence imposed in the Local Court was confirmed. For the count on the indictment, taking into account the form 1 offences, the applicant was sentenced to imprisonment for two years and six months, with a non parole period of eighteen months, each to commence upon expiry of the six months term, ie upon 4 November 2000.
As a consequence of this further sentence, and the confirmation of the sentence below, the applicant is due to serve a total custodial period of two years which was due to expire on 3 May 2002, with an additional period subject to supervision on probation of twelve months.
Two grounds of appeal are relied upon the first of which was raised only during the hearing of the appeal. It was to the effect that having regard to the small quantity and low purity of methylamphetamine involved, the sentence imposed was manifestly excessive.
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 Maarbani

Details

AGLC: R v Maarbani [2001] NSWCCA 509
Case: [2001] NSWCCA 509
Decision Date: 13 December 2001

CaseChat Overview and Summary

The appellant, Maarbani, appealed against his sentence for maliciously inflicting grievous bodily harm and supplying a prohibited drug. The case was heard in the Court of Criminal Appeal. The appellant contended that his sentence was manifestly excessive, particularly considering his development of idiopathic epilepsy while in prison. He argued that the condition, though not present at the time of sentencing, should have been considered as it would likely be exacerbated by imprisonment.

The court examined whether the sentence was excessive and whether the appellant's health condition, which developed post-sentencing, warranted a reduction in his punishment. The court noted that ill health can mitigate punishment if imprisonment is likely to be a greater burden due to the offender's state of health. However, the court found that the original sentence adequately reflected the totality of the criminality involved and that special circumstances did not warrant a full re-sentencing. The court did find that special circumstances existed to justify a reduction in the non-parole period.

The Court of Criminal Appeal upheld the original sentence but reduced the non-parole period, acknowledging the appellant's deteriorating health condition while in prison. The court emphasised that the original sentence was appropriate given the severity of the crimes committed, and any health issues would only mitigate the punishment if they substantially increased the burden of imprisonment.

Orders