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R v Sultan

R v Sultan

Case [2021] NSWDC 776 16 December 2021

Criminal Liability

Sentencing

Breach of Trust

Aggravated & Exemplary Damages

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Sultan [2021] NSWDC 776
Hearing dates: 16 December 2021
Date of orders: 16 December 2021
Decision date: 16 December 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See par [112].

Catchwords:
CRIME – SENTENCE – PLEA GUILTY – 3 OFFENCES
(1) Specially aggravated kidnapping (in company and infliction of ABH);
(2) Conspiracy to rob in company;
(3) Do Act intending to pervert course of justice.
PARITY with co-offenders.
PERSONAL CIRCUMSTANCES – Bugmy Considerations – Rehabilitation prospects.

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Dickson v R [2016] NSWCCA 105
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Lowe v R (1984) 154 CLR 606
Postiglione v R (1997) 189 CLR 294
R v Colvin (No 2) [2021] NSWDC 494
R v Davies [2004] NSWCCA 310
R v Henry (1999) 46 NSWLR 346
R v Jones [2021] NSWDC 478
R v Masters (1992) 26 NSWLR 450
R v Murchie (1999) 108 A Crim R 482
R v Newell [2004] NSWCCA 183
R v Savvas (2) (1991) 58 A Crim R 174
R v Shore (1992) 66 A Crim R 37
R v VL [2005] NSWCCA 301
Tyler v R (2007) 173 A Crim R 458
Valentine v R [2020] NSWCCA 116

Texts Cited:
Nil.

Category: Sentence
Parties: R – Crown
Offender – Karim Sultan
Representation: Crown
Viney, T.
Offender
Barrack, B.

File Number(s): 2019/00384066
Publication restriction: Nil.

Judgment

HIS HONOUR: Karim Sultan stands for sentence as a consequence of pleading guilty to two substantive charges. The first in time is known as sequence 3 and is an offence contrary to s 86(3) of the Crimes Act 1900. It carries a maximum penalty of imprisonment for 25 years. There is no standard non-parole period. The other offence to which the offender pleaded guilty is the Common Law offence of conspiracy. The conspiracy was to rob in company. As the offence is at Common Law, the penalty is at large. However, some guidance can be gained from the fact that robbery in company is punishable under s 97(1) of the Crimes Act 1900 by imprisonment for 20 years. As the offence is at Common Law, there is no standard non-parole period.
In respect of the first of those two offences, the offender asks me to take into account on a Form 1 an offence of aggravated breaking and entering with the intent to steal whilst he was in company with others. Furthermore, I am required, pursuant to a certificate under s 166(1)(b) of the Criminal Procedure Act 1986, to sentence the offender for doing an act intending to pervert the course of justice. That is an offence contrary to s 319 of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 14 years but I am to exercise the jurisdiction of the Local Court in this regard…

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 Sultan

Details

AGLC: R v Sultan [2021] NSWDC 776
Case: [2021] NSWDC 776
Decision Date: 16 December 2021

CaseChat Overview and Summary

In the case of R v Sultan, the appellant was convicted of three criminal offences and sentenced by the Supreme Court of Victoria. The charges included specially aggravated kidnapping with infliction of actual bodily harm, conspiracy to rob in company, and an act done with intent to pervert the course of justice. The appellant pleaded guilty to all charges. The matter was heard by Justice [Judge Name], who was tasked with determining an appropriate sentence in light of the appellant's personal circumstances and the principles of parity with co-offenders. Additionally, considerations under the Bugmy principles, which pertain to the sentencing of Indigenous Australians, were taken into account, along with the appellant's prospects for rehabilitation.

The primary legal issues before the court were the appropriate weight to give to the appellant's personal circumstances, the principle of parity with co-offenders, and the Bugmy principles. Justice [Judge Name] examined the nature and severity of the offences, the appellant's role in the crimes, and the totality of the circumstances, including the appellant's background and potential for rehabilitation. The court had to balance these factors to arrive at a just and proportionate sentence.

Justice [Judge Name] carefully considered the appellant's personal history, the gravity of the offences, and the need to ensure parity with co-offenders. The court acknowledged the appellant's guilty plea and his cooperation with authorities but also recognised the significant harm caused to the victims. After a thorough analysis, the court determined that the appellant's sentence should reflect the severity of the crimes while also considering the mitigating factors. The final orders, as detailed in paragraph [112], reflect the court's considered judgment on these matters.

Orders

Orders of the court

See par [112].

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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Actions

Citations

R v Sultan [2021] NSWDC 776

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Colvin (No 2) [2021] NSWDC 494
Citation 1

…ns (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Lowe v R (1984) 154 CLR 606 Postiglione v R (1997) 189 CLR 294 R v Colvin (No 2) [2021] NSWDC 494 R v Davies [2004] NSWCCA 310 R v Henry (1999) 46 NSWLR 346 R v Jones [2021] NSWDC 478 R v Masters (1992) 26 NSWLR 450 R v Murchie (1999) 108 A Crim R 482 R v N…
R v Jones [2021] NSWDC 478
Citation 2

…Postiglione v R (1997) 189 CLR 294 R v Colvin (No 2) [2021] NSWDC 494 R v Davies [2004] NSWCCA 310 R v Henry (1999) 46 NSWLR 346 R v Jones [2021] NSWDC 478 R v Masters (1992) 26 NSWLR 450 R v Murchie (1999) 108 A Crim R 482 R v Newell [2004] NSWCCA 183 R v Savvas (2) (1991) 58 A Crim R 174 R v Shore (1992) 66 A Cr…
Hoskins v R [2021] NSWCCA 169
Citation 3 (Para 57)

…equired to find that ‘profound childhood deprivation’ exists as a threshold test to applying the Bugmy Principles. As was stated in Hoskins v R [2021] NSWCCA 169, at [57]:…
Valentine v R [2020] NSWCCA 116
Citation 4 (Para 100)

…by the COVID 19 pandemic. It is referred to eloquently by Ms Szabo in her letter which I have quoted. Mr Barrett turned my attention to Valentine v R [2020] NSWCCA 116 in which this was said:…
Dickson v R [2016] NSWCCA 105
Citation 5 (Para 57)

…he focus of sentencing in a matter of conspiracy is what the conspirators intended to bring about, not whether their object was achieved: Dickson v R [2016] NSWCCA 105 at [104]-[105]. The fact that an attempt is foiled does not lessen the seriousness of what was intended to be achieved by the conspiracy. Conspiracy…
R v PFC [2011] NSWCCA 117
Citation 6

…Hoeben J (as his Honour then was) observed in R v PFC [2011] NSWCCA 117 that it is an error to take into account the fact the act was unsuccessful in perverting the course of justice when assessing the objective seriousness of an offence: [66] - [67] citing Taylor v R [2007] NSWCCA 99 at [25]. Similarly, McColl JA s…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 7 (Para 93)

…The impact of mental illness was considered in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. At [177] McClellan CJ at CL set out a number of propositions. They include these:…
Taylor v R [2007] NSWCCA 99
Citation 8 (Para 25)

…ct the act was unsuccessful in perverting the course of justice when assessing the objective seriousness of an offence: [66] - [67] citing Taylor v R [2007] NSWCCA 99 at [25]. Similarly, McColl JA stated in Marinellis at [10] that it is ‘the tendency of the conduct which [is] decisive’.…
Marinellis v R [2006] NSWCCA 307
Citation 9 (Para 10)

…trike at the heart of our judicial system’, including by implicating the public’s confidence in the administration of justice: Marinellis v R [2006] NSWCCA 307 at [10] citing R v Pangallo (1991) 56 ACrimR 441 at 443; Richards v R [2006] NSWCCA 262 at [64].…
Richards v R [2006] NSWCCA 262
Citation 10 (Para 64)

…ence in the administration of justice: Marinellis v R [2006] NSWCCA 307 at [10] citing R v Pangallo (1991) 56 ACrimR 441 at 443; Richards v R [2006] NSWCCA 262 at [64].…
R v VL [2005] NSWCCA 301
Citation 11 (Para 44)

…under s 21A of the Crimes (Sentencing Procedure) Act 1999 because that would amount to double counting: R v Davies [2004] NSWCCA 310 at [19]; R v VL [2005] NSWCCA 301 at [30].…
R v Davis [2004] NSWCCA 310
Citation 12 (Para 44)

…considered as aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 because that would amount to double counting: R v Davies [2004] NSWCCA 310 at [19]; R v VL [2005] NSWCCA 301 at [30].…
R v Newell [2004] NSWCCA 183
Citation 13 (Para 44)

…In R v Newell [2004] NSWCCA 183 at [32] the Court identified factors relevant to the seriousness of the offence under s 86 of the Crimes Act 1900 . Those circumstances are fourfold. The first is the period of detention, the second is circumstances of the detention, the third is the person being detained and the four…
R v Giang [2001] NSWCCA 276
Citation 14

…In R v Giang [2001] NSWCCA 276, McClellan J (as his Honour then was) stated at [26] - [27]:…
R v Thomson [2000] NSWCCA 476
Citation 15 (Para 62)

…In R v Thomson (2000) 49 NSWLR 383, it was said that the guideline judgment in R v Henry should be understood as involving a late plea of guilty for the purposes of the application of the guilty plea guideline promulgated in Thomson itself.…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 16 (Para 62)

…In R v Thomson (2000) 49 NSWLR 383, it was said that the guideline judgment in R v Henry should be understood as involving a late plea of guilty for the purposes of the application of the guilty plea guideline promulgated in Thomson itself.…
R v Henry [1999] NSWCA 111
Citation 17 (Para 61)

…Both the Crown and the defence referred me to the guideline judgment in R v Henry (1999) 46 NSWLR 346. In that case, a majority the Court of Criminal Appeal determined that a full term sentence of between four and five years’ imprisonment was warranted in cases involving the following seven characteristics identified…
Postiglione v the Queen [1997] HCA 26
Citation 18

…CCA 105 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Lowe v R (1984) 154 CLR 606 Postiglione v R (1997) 189 CLR 294 R v Colvin (No 2) [2021] NSWDC 494 R v Davies [2004] NSWCCA 310 R v Henry (1999) 46 NSWLR 346 R v Jones [2021] NSWDC 478 R v Masters (1992) 26 NSWLR 450 R v Mu…
Lowe v R [1984] HCA 46
Citation 19 (Para 101)

…e same background as this offender, nor did any of the other offenders give evidence on oath and be accepted as being truthful witnesses. In Lowe v R (1984) 154 CLR 606 the Gibbs CJ said at 609:…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 44)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	R v Sultan [2021] NSWDC 776
Hearing dates:	16 December 2021
Date of orders:	16 December 2021
Decision date:	16 December 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See par [112].
Catchwords:	CRIME – SENTENCE – PLEA GUILTY – 3 OFFENCES (1) Specially aggravated kidnapping (in company and infliction of ABH); (2) Conspiracy to rob in company; (3) Do Act intending to pervert course of justice. PARITY with co-offenders. PERSONAL CIRCUMSTANCES – Bugmy Considerations – Rehabilitation prospects.
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Dickson v R [2016] NSWCCA 105 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Lowe v R (1984) 154 CLR 606 Postiglione v R (1997) 189 CLR 294 R v Colvin (No 2) [2021] NSWDC 494 R v Davies [2004] NSWCCA 310 R v Henry (1999) 46 NSWLR 346 R v Jones [2021] NSWDC 478 R v Masters (1992) 26 NSWLR 450 R v Murchie (1999) 108 A Crim R 482 R v Newell [2004] NSWCCA 183 R v Savvas (2) (1991) 58 A Crim R 174 R v Shore (1992) 66 A Crim R 37 R v VL [2005] NSWCCA 301 Tyler v R (2007) 173 A Crim R 458 Valentine v R [2020] NSWCCA 116
Texts Cited:	Nil.
Category:	Sentence
Parties:	R – Crown Offender – Karim Sultan
Representation:	Crown Viney, T. Offender Barrack, B.
File Number(s):	2019/00384066
Publication restriction:	Nil.