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R v Nasrallah

R v Nasrallah

Case [2020] NSWDC 888 16 December 2020

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District Court

New South Wales

Medium Neutral Citation: R v Nasrallah [2020] NSWDC 888
Hearing dates: 16 December 2020
Decision date: 16 December 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Robbery armed with offensive weapon: Sentenced to a term of imprisonment of 2 years 9 months. Non-parole period 1 year 4 months.
Destroy or damage property: Sentenced to a concurrent term of imprisonment of 3 months

Catchwords:
CRIME - Robbery armed with offensive weapon - Destroy or damage property
SENTENCING - Relevant factors on sentence – first offender - young offender - a one-off aberrant event - strong subjective case - applicability of guideline judgment – parity - first time custody - ICO not appropriate to the objective seriousness of the armed robbery offence - special circumstances

Legislation Cited:
Crimes Act1900 (NSW)
Criminal Procedure Act 1986

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Bugmy v R (1990) 169 CLR 525; [1990] HCA 18
Clarke-Jeffries v R [2019] NSWCCA 56
IS v R [2017] NSWCCA 116
Kristensen v R [2018] NSWCCA 189
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Lau v R [2010] NSWCCA 43
Legge v R [2007] NSWCCA 244
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Drollett [2002 NSWCCA 13
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Herring (1956) 73 WN (NSW) 203
R v Mastronardi (2000)111 A Crim R 206
R v Windle [2012] NSWCCA 222
Ruano v R [2011] NSWCCA 149
Rios v R [2012] NSWCCA 8
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Wany v DPP [2020] NSWCA 318

Category: Sentence
Parties: Fatma Nasrallah (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr B Barrack (for the offender)
Solicitors:
Dibb Lawyers (for the offender)
Ms J Azad (for Director of Public Prosecutions)

File Number(s): 2020/00065962

sentence – ex tempore revised

At about 7.50pm on Friday, 28 February 2020, Mouhammad Mehdi, heavily disguised, ran into the Caltex service station in Windang Road, Windang. He grabbed the console operator and forced him to the till. As he did so, Fatma Nasrallah, also heavily disguised, entered the serving area, wielding a crowbar in an aggressive fashion, smashing it into shelves, banging it on the counter.
As Mehdi, holding a knife to the operator’s throat, took money from the till and cigarettes from the counter, Nasrallah, wielding the crowbar and smashing it against the door and an ice-cream cabinet, kept the door open. The two then ran from the premises, taking money and cigarettes. They then hopped into a black Toyota Corolla owned by Nasrallah and drove a relatively short distance to Springhill Road, Southern Wollongong. Shortly after, they were arrested by police.
Nasrallah was born in 1999. Yes, she is young. She has no relevant criminal history. She and the co-offender were wielding weapons. They disguised themselves and took those weapons to the premises. There…

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 [2020] NSWDC 888
Case: [2020] NSWDC 888
Decision Date: 16 December 2020

CaseChat Overview and Summary

Nasrallah was charged with robbing another person armed with an offensive weapon and also damaging property. The case was heard in a higher court. The dispute primarily revolved around the appropriate sentencing for the offences, taking into consideration Nasrallah's status as a first offender, his age, and the context of the crime as an isolated incident. The court also had to consider the guideline judgment, the principle of parity, the potential impact of first-time custody, and whether an intensive correction order would be suitable given the seriousness of the offences.

The legal issues before the court involved determining the relevance of Nasrallah's age and status as a first offender, the one-off nature of the crime, the strength of the prosecution's case, and the applicability of the guideline judgment to the present case. The court also needed to weigh the potential benefits of an intensive correction order against the need for a custodial sentence that reflects the objective seriousness of the armed robbery and property damage.

The court, after considering the evidence and arguments, determined that the guideline judgment provided a useful framework but was not determinative. It recognised Nasrallah's youth and the one-off nature of the crime but also emphasised the seriousness of the armed robbery, which involved the use of an offensive weapon. The court decided that a custodial sentence was necessary to reflect the gravity of the offence and to ensure public safety. It concluded that an intensive correction order would not be appropriate, given the objective seriousness of the crimes. Nasrallah was sentenced to a term of imprisonment for the armed robbery of two years and nine months, with a non-parole period of one year and four months. For the property damage, he received a concurrent sentence of three months.

In summary, the court imposed a custodial sentence that balanced the need for punishment and deterrence with the mitigating factors of Nasrallah's age and first-time offender status. The final orders were for Nasrallah to serve a term of imprisonment for the armed robbery and a concurrent term for the property damage.

Orders

Orders of the court

Robbery armed with offensive weapon: Sentenced to a term of imprisonment of 2 years 9 months. Non-parole period 1 year 4 months.

Destroy or damage property: Sentenced to a concurrent term of imprisonment of 3 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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Citations

AGLC Citation

R v Nasrallah [2020] NSWDC 888

Most Recent Citation

Perry v Kinnear (No. 6) [2021] NSWDC 273

Cases citing this decision · 1 of 1 shown

Perry v Kinnear (No. 6)
[2021] NSWDC 273

…)(b). Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Perry v Kinnear & Ors (No. 1) [2020] NSWDC 887 Perry v Kinnear & Ors (No. 2) [2020] NSWDC 888 Perry v Kinnear & Ors (No. 3) [2020] NSWDC 889 Perry v Kinnear & Ors (No. 4) [2020] NSWDC 890 Perry v Kinnear & Ors (No. 5) [2021] NSWDC 145 Category: Costs Pa…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

Wany v Director of Public Prosecutions
[2020] NSWCA 318 Para 14

…e Crimes (Sentencing Procedure) Act and the requirements in s 66(1) in particular. As the Court of Criminal Appeal recently pointed out in Wany v DPP [2020] NSWCA 318, that consideration is not necessarily determinative, but it must be made. The Court has to ultimately synthesise all relevant factors and reach a ju…
Clarke-Jeffries v R
[2019] NSWCCA 56 Para 25

…trol develop progressively during adolescence and early adulthood and may not be as developed until a person’s mid-20s: Clarke-Jeffries v R [2019] NSWCCA 56 and KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571.…
Kristensen v R
[2018] NSWCCA 189 Para 35

…ine months, less 25% and with some rounding down. There is no need for absolute arithmetical precision in the assessment of sentences: Kristensen v R [2018] NSWCCA 189 . Despite the apparent mandatory terms of s25D Crimes (Sentencing Procedure) Act 1999, the specification of a term in days or hours is not necessary:…
IS v R
[2017] NSWCCA 116 Para 28

…stress disorder, but it is not a history of profound deprivation. Her background can be contrasted with a case cited to me by Mr Barrack, IS v R [2017] NSWCCA 116 at 26-29. Nevertheless, a background such as that established is always relevant in matters such as this.…
Bugmy v The Queen
[2013] HCA 37

…e - special circumstances Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Bugmy v R (1990) 169 CLR 525; [1990] HCA 18 Clarke-Jeffries v R [2019] NSWCCA 56 IS v R [2017] NSWCCA 116 Kristensen v R [2018] NSWCCA 189 KT v R [2008]…
R v Windle
[2012] NSWCCA 222 Para 32

…s to the need for retribution and appropriate punishment: R v Herring (1956) 73 WN (NSW) 203, at 205; Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.…
Rios v R
[2012] NSWCCA 8 Para 35

…Crimes (Sentencing Procedure) Act 1999, the specification of a term in days or hours is not necessary: Ruano v R [2011] NSWCCA 149 at [20]; Rios v R [2012] NSWCCA 8 at [42]-[43].…
Muldrock v The Queen
[2011] HCA 39 Para 9

…The Court of Criminal Appeal, following decisions such as Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, have indicated that guidelines exist to ensure consistency of sentencing, but no one factor can and should be determinative of a sentence. Courts do not simply start by looking at the guideline and t…
Ruano v R
[2011] NSWCCA 149 Para 35

…the apparent mandatory terms of s25D Crimes (Sentencing Procedure) Act 1999, the specification of a term in days or hours is not necessary: Ruano v R [2011] NSWCCA 149 at [20]; Rios v R [2012] NSWCCA 8 at [42]-[43].…
Lau v R
[2010] NSWCCA 43 Para 23

…ar as possible, to ensure equal justice. In cases, that principle can also encompass the structure of the sentence and its non-parole period: Lau v R [2010] NSWCCA 43.…
KT v R
[2008] NSWCCA 51 Para 25

…uring adolescence and early adulthood and may not be as developed until a person’s mid-20s: Clarke-Jeffries v R [2019] NSWCCA 56 and KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571.…
Legge v R
[2007] NSWCCA 244 Para 9

…tional deductions from it. As early as 2007, well before Muldrock , Spigelman CJ said that guidelines are not meant to be “tram lines:” Legge v R [2007] NSWCCA 244. They’re there to assist judges in the exercise of their sentencing discretion.…
Ryan v The Queen
[2001] HCA 21

…rdi (2000)111 A Crim R 206 R v Windle [2012] NSWCCA 222 Ruano v R [2011] NSWCCA 149 Rios v R [2012] NSWCCA 8 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Wany v DPP [2020] NSWCA 318 Category: Sentence Parties: Fatma Nasrallah (the offender) Director of Public Prosecutions Representation: Counsel: Mr B Barr…
R v Henry
[1999] NSWCCA 111 Para 8

…everely. Many years ago, at the time this offender was born, the Court of Criminal Appeal in this State brought in the guideline judgment - R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. It was brought in to ensure some consistency in the sentencing of armed robbers and because of a fear that excessive leniency w…
R v Henry
[1999] NSWCA 111 Para 8

…ago, at the time this offender was born, the Court of Criminal Appeal in this State brought in the guideline judgment - R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. It was brought in to ensure some consistency in the sentencing of armed robbers and because of a fear that excessive leniency was being shown by the…
Bugmy v The Queen
[1990] HCA 18 Para 33

…es of sentencing. The non‑parole period must be the minimum period of custody appropriate to all of the circumstances of the offence: Bugmy v R [1990] HCA 18; (1990) 169 CLR 525.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 11)
Crimes Act 1900 (ACT)
1 mention (from Para 4)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 4)

Medium Neutral Citation:	R v Nasrallah [2020] NSWDC 888
Hearing dates:	16 December 2020
Decision date:	16 December 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Robbery armed with offensive weapon: Sentenced to a term of imprisonment of 2 years 9 months. Non-parole period 1 year 4 months. Destroy or damage property: Sentenced to a concurrent term of imprisonment of 3 months
Catchwords:	CRIME - Robbery armed with offensive weapon - Destroy or damage property SENTENCING - Relevant factors on sentence – first offender - young offender - a one-off aberrant event - strong subjective case - applicability of guideline judgment – parity - first time custody - ICO not appropriate to the objective seriousness of the armed robbery offence - special circumstances
Legislation Cited:	Crimes Act1900 (NSW) Criminal Procedure Act 1986
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Bugmy v R (1990) 169 CLR 525; [1990] HCA 18 Clarke-Jeffries v R [2019] NSWCCA 56 IS v R [2017] NSWCCA 116 Kristensen v R [2018] NSWCCA 189 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Lau v R [2010] NSWCCA 43 Legge v R [2007] NSWCCA 244 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Drollett [2002 NSWCCA 13 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Herring (1956) 73 WN (NSW) 203 R v Mastronardi (2000)111 A Crim R 206 R v Windle [2012] NSWCCA 222 Ruano v R [2011] NSWCCA 149 Rios v R [2012] NSWCCA 8 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Wany v DPP [2020] NSWCA 318
Category:	Sentence
Parties:	Fatma Nasrallah (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr B Barrack (for the offender) Solicitors: Dibb Lawyers (for the offender) Ms J Azad (for Director of Public Prosecutions)
File Number(s):	2020/00065962