R v Mohammad Hraichie - [2011] NSWDC 219

District Court

New South Wales

Medium Neutral Citation: R v Mohammad Hraichie [2011] NSWDC 219
Hearing dates: 5 August 2011
Decision date: 05 August 2011
Before: Judge S Norrish QC
Decision:
Term of imprisonment of six years and six months commencing 06/11/2010 and expiring on 06/05/2017 with a non parole period of three years nine months expiring 05/08/2014.

Catchwords: SENTENCING: Armed robbery: special circumstances, conditional liberty.
Legislation Cited: Crime (Sentencing Procedure) Act 1999
Cases Cited: The Queen v Callaghan
The Queen v Hemsley [2004] NSWCCA 228
R v Henry (1999) 46 NSWLR 346
R v Walker [2002] NSWCCA 178
R v Martin [2004] NSWCCA 416
R v Tuncbilek [2004] NSWCCA 139
R v Fry [2004] NSWCCA 238
R v Sua [2000] NSWCCA 94
R v RMK [2002] NSWCCA 414
Category: Sentence
Parties: Regina
Mohammad Hraichie
Representation: Mr Tabuteau - Crown
Mr Price - offender
Department of Public Prosecutions
Legal Aid

File Number(s): 2010/261212

Sentence

HIS HONOUR: Mohammad Hraichie appears today for sentence, after being found guilty by a jury of an offence alleging an armed robbery committed on 8 April 2010 at Bankstown. The allegation was that he was armed with an offensive weapon, namely a gun, and he robbed Fazin Attar of $50, one 'iPod' music player, one mobile phone and a packet of cigarettes the property of that victim.

A co-accused was acquitted and her acquittal is of no moment in these sentencing proceedings, as the submissions made clear.

The prisoner has been in custody, as I understand it, since his arrest on 6 August 2010. He was bail refused in relation to the current matter, not only because of the seriousness of the allegation but he was then on parole and his parole had been revoked. I assume police became aware of a warrant requiring his apprehension. His parole had been revoked, I am informed today, on 8 July 2010. I am informed that he served the balance of parole for a period of six months and one day from the date he came into custody, 6 August 2010, and that expired on 6 February 2011. The prisoner has remained in custody, of course, since the parole that was revoked expired because he was bail refused.

I have a general discretion in terms of the fixing of the commencement date of the sentence. I could commence the sentence from the date he came into custody at the expiry of the revoked parole period, or a period in between. In considering this issue, that is the issue of the commencement of the sentence, I have had regard to the decision of The Queen v Callaghan , particularly the judgment of Simpson J, and her assessment of the authorities relating to this matter. Bearing in mind in due course I will be finding as an aggravating factor that the prisoner committed the offence whilst on parole, I have determined that I should commence the sentence that I impose for the offence, for which the prisoner was convicted by 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 Mohammad Hraichie

Details

AGLC: R v Mohammad Hraichie [2011] NSWDC 219
Case: [2011] NSWDC 219
Decision Date: 05 August 2011

CaseChat Overview and Summary

In the case of R v Mohammad Hraichie, the appellant was convicted of armed robbery and faced the court for sentencing. The dispute involved determining the appropriate term of imprisonment and the conditions under which the appellant could be granted conditional liberty. The court considered the seriousness of the offence, the appellant's criminal history, and the circumstances surrounding the offence.

The primary legal issue before the court was the determination of an appropriate sentence for the offence of armed robbery, particularly considering the special circumstances involved. The court had to balance the need for punishment and deterrence against the possibility of rehabilitation and reintegration into society. Another issue was the imposition of a non-parole period to ensure public safety while also allowing for the possibility of the appellant's rehabilitation.

The court found that the offence of armed robbery was serious, involving the use of a weapon and causing fear and intimidation to the victims. The court noted the appellant's previous criminal history, which included multiple convictions for serious offences. However, the court also considered the appellant's age, his expressed remorse, and his potential for rehabilitation. The court concluded that a term of imprisonment of six years and six months was appropriate, with a non-parole period of three years and nine months. The court also granted conditional liberty to the appellant, subject to certain conditions, to facilitate his reintegration into society.

The court ordered that the term of imprisonment would commence on 06/11/2010 and expire on 06/05/2017. The non-parole period was set to expire on 05/08/2014. The court also imposed conditions on the appellant's conditional liberty, including requirements to participate in rehabilitation programs and to report regularly to a supervising officer.

Orders

Orders of the court

Term of imprisonment of six years and six months commencing 06/11/2010 and expiring on 06/05/2017 with a non parole period of three years nine months expiring 05/08/2014.

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 Mohammad Hraichie [2011] NSWDC 219
Hearing dates:	5 August 2011
Decision date:	05 August 2011
Before:	Judge S Norrish QC
Decision:	Term of imprisonment of six years and six months commencing 06/11/2010 and expiring on 06/05/2017 with a non parole period of three years nine months expiring 05/08/2014.
Catchwords:	SENTENCING: Armed robbery: special circumstances, conditional liberty.
Legislation Cited:	Crime (Sentencing Procedure) Act 1999
Cases Cited:	The Queen v Callaghan The Queen v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 R v Walker [2002] NSWCCA 178 R v Martin [2004] NSWCCA 416 R v Tuncbilek [2004] NSWCCA 139 R v Fry [2004] NSWCCA 238 R v Sua [2000] NSWCCA 94 R v RMK [2002] NSWCCA 414
Category:	Sentence
Parties:	Regina Mohammad Hraichie
Representation:	Mr Tabuteau - Crown Mr Price - offender Department of Public Prosecutions Legal Aid
File Number(s):	2010/261212