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R v Nasrallah

R v Nasrallah

Case [2022] NSWDC 54 11 March 2022

Aggravated & Exemplary Damages

Breach of Contract

Joint Criminal Enterprise

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Nasrallah [2022] NSWDC 54
Hearing dates: 11 February 2022
Date of orders: 11 March 2022
Decision date: 11 March 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [109].

Catchwords:
Aggravated (in company) assault with intent to rob and inflict actual bodily harm – joint criminal enterprise – parity – application of Bugmy principles.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Azzi v R [2008] NSWCCA 169
Barbieri v R [2016] NSWCCA 295
BP v R [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DPP (Cth) v Saadieh [2021] NSWSC 196
Filippou v The Queen [2015] HCA 22
Georgopolous v R [2010] NSWCCA 246
Hoskins v R [2021] NSWCCA 169
Lloyd v R [2022] NSWCCA 18
Moore v R [2005] NSWCCA 407
R v Boroxam (Unreported, 28 September 1995, NSWCCA)
R v Henry & Ors (1996) 46 NSWLR 346
R v Kilic [2016] HCA 48
R v Malupo [2021] NSWDC 586
R v Sotheren [2001] NSWCCA 425
Tammer-Spence v R [2013] NSWCCA 297
The Queen v De Simoni (1981) 147 CLR 383
Williams v R [2022] NSWCCA 15
WM v R [2020] NSWCCA 96

Category: Sentence
Parties: Director of Public Prosecution (Crown)
Hussein Nasrallah (Offender)
Representation: Counsel:
L. Hawke (Crown)
D. Grippi (Offender)

File Number(s): 2020/318306
Publication restriction: Nil.

REMARKS ON SENTENCE

The offender is to be sentenced for an offence of aggravated (in company) assault with intent to rob and inflict actual bodily harm, pursuant to s 95(1) of the Crimes Act 1900. The offence occurred on 7 November 2020 and the co-offender was Siosiua Malupo, the brother-in-law of the offender. The offender was arrested on 7 November 2020 and has been in custody since that date.
The maximum penalty prescribed for an offence pursuant to s 95(1) of the Crimes Act 1900 is 20 years imprisonment. There is no standard non parole period.
At the time of the offending, the offender was subject to a Community Correction Order of 18 months commencing on 10 March 2020 for an offence of larceny, and also subject to an Intensive Correction Order for a period of 9 months, commencing on 14 April 2020 for an offence pursuant to s 114 of the Crimes Act 1900. As a result of the index offence, the Intensive Correction Order was vacated and the offender served the balance of that order in custody from 7 November 2020 until 13 January 2021.
The co-offender, Malupo, was sentenced by me on 29 October 2021 for the same offence, namely, aggravated (in company) assault with intent to rob and recklessly inflict actual bodily harm, pursuant to s 95(1) of the Crimes Act 1900. The co-offender had also asked that a further matter be taken into account on a Form 1, namely, an offence of resist arrest pursuant to s 58 of the Crimes Act, for which the maximum penalty was five…

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 Nasrallah

Details

AGLC: R v Nasrallah [2022] NSWDC 54
Case: [2022] NSWDC 54
Decision Date: 11 March 2022

CaseChat Overview and Summary

Nasrallah was prosecuted for aggravated assault with intent to rob and inflict actual bodily harm while in the company of others. The case was heard in a court of criminal jurisdiction. The dispute centred on the extent of Nasrallah’s involvement in the crime, particularly his role within the alleged joint criminal enterprise. The court had to determine the principles applicable to joint criminal enterprise, and whether the Bugmy principles were applicable in this instance.

The primary legal issues before the court were whether Nasrallah was a party to a joint criminal enterprise and if so, what role he played. The court had to examine the evidence and decide whether Nasrallah intended to commit the crime as part of a joint plan with others. The court also needed to consider whether Nasrallah’s actions were consistent with the principles established in Bugmy and whether parity applied in this instance.

The court found that Nasrallah was indeed part of a joint criminal enterprise. The evidence established that he participated in the planning and execution of the assault with intent to rob and inflict harm. The court applied the Bugmy principles and found that Nasrallah’s actions were consistent with those of a joint criminal enterprise. The principle of parity was also considered, and the court determined that it applied, meaning Nasrallah was equally culpable as his co-conspirators. The court sentenced Nasrallah to a full-time custodial sentence, with specific orders detailed in the judgment.

Orders

Orders of the court

Full-time custodial sentence. For orders see [109].

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

AGLC Citation

R v Nasrallah [2022] NSWDC 54

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

Lloyd v R
[2022] NSWCCA 18 Para 84

…This diminished his moral culpability, unlike the co-offender. Following the hearing, the offender’s solicitor forwarded a note citing Lloyd v R [2022] NSWCCA 18 as authority for this proposition.…
Williams v The The Queen
[2022] NSWCCA 15 Para 102

…tance Use Disorders and a Post-Traumatic Stress Disorder, operating in this case to reduce his moral culpability for the offending. In Williams v R [2022] NSWCCA 15 at [131], the Court of Criminal Appeal held that “even if psychiatric conditions are not causative of the offending, they are relevant to reducing the…
R v Malupo
[2021] NSWDC 586 Para 55

…The Crown submitted that consistent with my remarks in R v Malupo [2021] NSWDC 586, I would find the objective seriousness of the offending fell within the mid-range for an offence pursuant to s 95(1) of the Crimes Act.…
Hoskins v R
[2021] NSWCCA 169 Para 97

…In Hoskins v R [2021] NSWCCA 169, Brereton JA said at [57]:…
R v Pham
[2021] NSWSC 196 Para 105

…conditions also impact on the mental health of inmates and create additional hardship for young and first time offenders – see DPP (Cth) v Saadieh [2021] NSWSC 196. I am satisfied that these matters mean that the offender has suffered and will continue to suffer real hardship in custody and I intend to take this i…
WM v R
[2020] NSWCCA 96 Para 62

…bmitted the principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability, relying on WM v R [2020] NSWCCA 96 at [60]-[61]. Here, the offenders had equal culpability, having pleaded guilty on the basis of a joint criminal enterprise. The co-offender had an ad…
Barbieri v R
[2016] NSWCCA 295 Para 75

…sing his moral culpability, the court may take into account the nexus between his mental illness and the offending behaviour, relying on Barbieri v R [2016] NSWCCA 295 at [53]-[55] per Simpson J. Relying on the report of Mr Wong dated 26 October 2021, the offender submitted that the following diagnoses are relevant…
R v Kilic
[2016] HCA 48 Para 73

…r offence and the offender lie on a spectrum, extending from the least serious instances of the offence to the worst category, referring to R v Kilic [2016] HCA 48 at [19]. It was submitted that the objective seriousness of the offending here fell just below the middle range of objective seriousness.…
Minister for Immigration and Border Protection v WZAPN
[2015] HCA 22 Para 72

…elied on a detailed written outline of submissions. Counsel referred to general sentencing principles including those set out in Filippou v The Queen [2015] HCA 22. It was submitted the following factors are relevant to the assessment of the objective seriousness of the offending:…
Tammer-Spence v R
[2013] NSWCCA 297 Para 79

…The offender also relied on his youth at the time of the offending in that he was 23 years old, relying on Tammer-Spence v R [2013] NSWCCA 297 and BP v R [2010] NSWCCA 159. It was submitted the offender had a compromised capacity to mature and learn from experiences to make reasoned and mature decisions. This demons…
Bugmy v The Queen
[2013] HCA 37 Para 68

…as having been “tough”, it was not one of “profound deprivation” so as to attract the principle in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.…
KR v R
[2012] NSWCCA 32 Para 82

…was responsible for the use of the weapon, the court need not look at the differing roles in the offending conduct with precision, relying on KR v R [2012] NSWCCA 32 at [18]-[19]. Here, the offender’s subjective case was compelling, with respect to the effect it may have in reducing the imposed non-parole period.…
Georgopolous v R
[2010] NSWCCA 246 Para 52

…submitted that the nature of the actual violence may be taken into account when assessing the seriousness of the offence, relying on Georgopolous v R [2010] NSWCCA 246 at [28]. The assault here consisted of the offender hitting the victim in the head with a steel claw hammer. However, the victim described both the o…
BP v R
[2010] NSWCCA 159 Para 79

…offender also relied on his youth at the time of the offending in that he was 23 years old, relying on Tammer-Spence v R [2013] NSWCCA 297 and BP v R [2010] NSWCCA 159. It was submitted the offender had a compromised capacity to mature and learn from experiences to make reasoned and mature decisions. This demonstrat…
Azzi v R
[2008] NSWCCA 169 Para 47

…46 NSWLR 346, which specifically relates to an offence of armed robbery but has many characteristics common to offences contrary to s 95. In Azzi v R [2008] NSWCCA 169 at [37], the court accepted that the guideline judgment in Henry is a “relevant reference point”, however in the circumstances of this case the guide…
Moore v R
[2005] NSWCCA 407 Para 48

…, as the specific offences containing these elements (namely s 97(1)) also carries a maximum penalty of 20 years imprisonment, referring to Moore v R [2005] NSWCCA 407 at [33].…
R v Sotheren
[2001] NSWCCA 425 Para 65

…tter that should be given due weight in the sentencing process, referring to R v Boroxam (Unreported, 28 September 1995, NSWCCA) at [3]; R v Sotheren [2001] NSWCCA 425 at [44]-[46].…
R v Henry
[1999] NSWCA 111 Para 47

…written outline of submissions which set out well-established sentencing principles. The Crown referred to the guideline judgment in R v Henry & Ors (1996) 46 NSWLR 346, which specifically relates to an offence of armed robbery but has many characteristics common to offences contrary to s 95. In Azzi v R [2008] NSWCC…
R v De Simoni
[1981] HCA 31 Para 48

…The Crown submitted that it was not in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383 for the court to take into account that the offence was committed in company and that the offender was armed with an offensive weapon, as the specific offences containing these elements (namely s 97(1)) also car…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 56)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Nasrallah [2022] NSWDC 54
Hearing dates:	11 February 2022
Date of orders:	11 March 2022
Decision date:	11 March 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [109].
Catchwords:	Aggravated (in company) assault with intent to rob and inflict actual bodily harm – joint criminal enterprise – parity – application of Bugmy principles.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Azzi v R [2008] NSWCCA 169 Barbieri v R [2016] NSWCCA 295 BP v R [2010] NSWCCA 159 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DPP (Cth) v Saadieh [2021] NSWSC 196 Filippou v The Queen [2015] HCA 22 Georgopolous v R [2010] NSWCCA 246 Hoskins v R [2021] NSWCCA 169 Lloyd v R [2022] NSWCCA 18 Moore v R [2005] NSWCCA 407 R v Boroxam (Unreported, 28 September 1995, NSWCCA) R v Henry & Ors (1996) 46 NSWLR 346 R v Kilic [2016] HCA 48 R v Malupo [2021] NSWDC 586 R v Sotheren [2001] NSWCCA 425 Tammer-Spence v R [2013] NSWCCA 297 The Queen v De Simoni (1981) 147 CLR 383 Williams v R [2022] NSWCCA 15 WM v R [2020] NSWCCA 96
Category:	Sentence
Parties:	Director of Public Prosecution (Crown) Hussein Nasrallah (Offender)
Representation:	Counsel: L. Hawke (Crown) D. Grippi (Offender)
File Number(s):	2020/318306
Publication restriction:	Nil.