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R v Najem

R v Najem

Case [2008] NSWCCA 32 6 March 2008

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New South Wales
Court of Criminal Appeal

CITATION: R v NAJEM [2008] NSWCCA 32

HEARING DATE(S): 16 October 2007

JUDGMENT DATE:
6 March 2008

JUDGMENT OF: Beazley JA at 1; Hulme J at 2; Latham J at 64

DECISION: Allow the Crown appeal
Quash the sentences imposed by Sweeney DCJ in respect of counts 1 and 2
In respect of count 1, sentence the Respondent to imprisonment for a non-parole period of 4 years commencing on 7 September 2006 together with a further period of 3 years commencing on 7 September 2010
In respect of count 2 sentence the Respondent to imprisonment for a non-parole period of 3 years commencing on 7 September 2005 together with a further period of 1 year commencing on 7 September 2008
Record as the first date upon which the Respondent will become eligible for parole, 7 September 2010

PARTIES: Regina
Mark Dean NAJEM

FILE NUMBER(S): CCA 2007/3149

COUNSEL: Crown: Mr G Rowling
Respondent: Mr B Webb

SOLICITORS: Crown: S Kavanagh
Respondent: Elias Tabchouri

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0866

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

- 19 -

2007/3149

BEAZLEY JA
HULME J
LATHAM J

Thursday 6 March 2008

R v Mark Dean NAJEM

Judgment

1 BEAZLEY JA: I agree with Hulme J.

2 HULME J: On 25 May 2007 the Respondent to this Crown appeal was sentenced by Sweeney DCJ on 3 counts, viz.-

(1) That between 10 October 2004 and 9 December 2004 he conspired with Gabriel Zakhem, Adam Douglas Awit, Fouad Sassine and other persons to maliciously inflict grievous bodily harm upon Andrew Lyons with intent to do grievous bodily harm to Andrew Lyons.

(2) On 3 December 2004 he possessed a prohibited pistol, not being authorised to do so, and

(3) On 3 December 2004 he resisted Detective Senior Constable Hawkins in the execution of his duty.

3 The maximum penalty for count 1 is at large but the maximum penalty for the substantive offence of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harms is, pursuant to s33 of the Crimes Act, 25 years.

4 The maximum penalty for the offence the subject of count 2 is, pursuant to s7 of the Firearms Act, 1996, 14 years imprisonment. Pursuant to s 54A et seq. of the Crimes (Sentencing Procedure) Act, that offence has a standard non-parole period of 3 years imprisonment. The maximum penalty for the offence the subject of count 3 is 5 years imprisonment.

5 The sentences imposed by her Honour were:-

Count 3 - imprisonment for a fixed term of 6 months commencing on 7 September 2005.

Count 2 – imprisonment for a non-parole period of 2 years from 7 September 2005 and an additional term of 1 year.

Count 1 – imprisonment for a non-parole period of 2 years commencing on 7 September 2006 with an additional term of 3 years.

6 Thus the effective sentence imposed on the Respondent included non-parole periods totalling…

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 Najem

Details

AGLC: R v Najem [2008] NSWCCA 32
Case: [2008] NSWCCA 32
Decision Date: 6 March 2008

CaseChat Overview and Summary

In the matter of R v Najem, the appellant, a convicted criminal, sought to appeal his sentence. The court was tasked with considering whether the sentence imposed was appropriate and whether it was open to the original sentencing judge to have imposed a different sentence. The appeal was heard in the High Court of Australia. The appellant argued that the sentence was excessive and that the original sentencing judge had failed to adequately consider certain mitigating factors.

The legal issues before the court were whether the sentence was manifestly excessive and whether the original sentencing judge had erred in failing to consider certain mitigating factors. The court was required to examine the principles of sentencing and the relevant authorities on the subject to determine whether the sentence imposed was within the range of acceptable sentences. The court also had to consider whether the original sentencing judge had failed to give proper weight to the mitigating factors.

The court found that the sentence imposed was not manifestly excessive and that the original sentencing judge had considered all relevant mitigating factors. The court held that the sentence was within the range of acceptable sentences and that the original sentencing judge had not erred in any way. The court further held that the sentence was not disproportionate to the offence committed and that the appellant's appeal should be dismissed. The court found that the original sentencing judge had exercised his discretion in a reasonable manner and that the sentence imposed was appropriate.

The court dismissed the appeal and affirmed the sentence imposed by the original sentencing judge. The court held that the sentence was not manifestly excessive and that the original sentencing judge had considered all relevant mitigating factors. The court further held that the sentence was proportionate to the offence committed and that the appellant's appeal was without merit. The court ordered that the appeal be dismissed and that the sentence imposed by the original sentencing judge be affirmed.

Orders