R v Najman - [2019] NSWDC 580

District Court

New South Wales

Medium Neutral Citation: R v Najman [2019] NSWDC 580
Hearing dates: 22 July 2019
Date of orders: 22 July 2019
Decision date: 22 July 2019
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Term of imprisonment of 2 years 6 months with a non-parole period of 1 year 8 months

Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence
SENTENCING — Commencement — Pre-sentence custody period
SENTENCING — Non-parole period — Principles to be applied
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Borkowski [2009] NSWCCA 102
Bugmy (2013) 249 CLR 571
Callaghan (2006) NSWCCA 58
R v Qutami [2001] NSWCCA 353
SZ v Regina [2007] NSWCCA 19
Category: Sentence
Parties: Regina (Crown)
Qajin Najman (Offender)
Representation:
Peter Clayton (Crown)
Ed Anderson (counsel) (Offender)
Director of Public Prosecutions (NSW) (Crown)
Blaxland Criminal Law (Offender)

File Number(s): 2017/00126578
Publication restriction: Non-publication order re confidential material

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

Qajin Najman is now 24 years of age and pleaded guilty upon arraignment in this Court to an offence contrary to s 113(2) Crimes Act 1900 expressed thus: that she on 26 April 2017 at Wentworth Point in the State of New South Wales did break and enter a dwelling house, the property of TP at Corniche Drive with intent to commit a serious indictable offence inside those premises, namely larceny, in circumstances of aggravation, namely, being in company.
An offence contrary to s 113(2) Crimes Act 1900 carries the maximum penalty of imprisonment for 14 years. There is no standard non-parole period for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

THE PLEA

Although the offender pleaded guilty upon arraignment, against the history of the proceedings through the Local Court and then this Court and the concurrent negotiations between the Crown and those representing her, it is as the Crown concedes appropriate to allow her a discount of 25% for the utility provided by the plea of guilty. The conduct in which she participated included a much broader range of criminality but in respect of it she could not ever be held responsible on the material that I have before me. The product of her participation in the early stages of the investigation led to the commencement of proceedings against her for an offence contrary to s 33A(1)(a) Crimes Act 1900 together with an offence contrary to s 112(3) of that Act. It will be clear from the facts that the evidence available to the Crown could not establish an offence contrary to s 33A(1)(a) Crimes Act 1900 and refinement of her participation to the offence of dishonesty ultimately led to the presentation upon the indictment to which she pleaded guilty to that charge.
At all times throughout the Local Court proceedings and in this Court it has been her wish to plead guilty to the wrongdoing upon which she was embarked and when given the opportunity to take that…

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 Najman

Details

AGLC: R v Najman [2019] NSWDC 580
Case: [2019] NSWDC 580
Decision Date: 22 July 2019

CaseChat Overview and Summary

The case of R v Najman involved the defendant, Najman, charged with breaking and entering with intent to commit a serious indictable offence. The matter was heard in a court of criminal jurisdiction. The dispute centred around the appropriate sentence to be imposed on Najman for his criminal conduct, with particular attention to the commencement of his sentence, the period he had already spent in custody, and the determination of a non-parole period.

The primary legal issues before the court were the calculation of the commencement date for the defendant's sentence and the appropriate length of the non-parole period. The court had to consider the principles surrounding the commencement of the sentence in light of the time Najman had already spent in custody prior to being sentenced, and it also had to determine the non-parole period in accordance with the relevant statutory and judicial guidelines. The court needed to balance the seriousness of the offence, the circumstances of the offence, and the defendant's personal circumstances in making these determinations.

In delivering the judgment, the court first addressed the issue of the commencement date of the sentence. It concluded that the sentence should commence from the date of the defendant's arrest, taking into account the period of pre-sentence custody. Regarding the non-parole period, the court considered the nature and circumstances of the offence, including the defendant's criminal history and the need for deterrence and rehabilitation. It ultimately decided on a non-parole period of 1 year 8 months. The total term of imprisonment imposed on the defendant was 2 years 6 months.

The court ordered that Najman serve a term of imprisonment of 2 years 6 months, with a non-parole period of 1 year 8 months. The sentence was to commence from the date of his arrest, taking into account the time already spent in custody.

Orders

Orders of the court

Term of imprisonment of 2 years 6 months with a non-parole period of 1 year 8 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 Najman [2019] NSWDC 580
Hearing dates:	22 July 2019
Date of orders:	22 July 2019
Decision date:	22 July 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 2 years 6 months with a non-parole period of 1 year 8 months
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence SENTENCING — Commencement — Pre-sentence custody period SENTENCING — Non-parole period — Principles to be applied
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Borkowski [2009] NSWCCA 102 Bugmy (2013) 249 CLR 571 Callaghan (2006) NSWCCA 58 R v Qutami [2001] NSWCCA 353 SZ v Regina [2007] NSWCCA 19
Category:	Sentence
Parties:	Regina (Crown) Qajin Najman (Offender)
Representation:	Peter Clayton (Crown) Ed Anderson (counsel) (Offender) Director of Public Prosecutions (NSW) (Crown) Blaxland Criminal Law (Offender)
File Number(s):	2017/00126578
Publication restriction:	Non-publication order re confidential material