R v Sultan; R v N - [2003] NSWCCA 404

CITATION: R v Sultan; R v N [2003] NSWCCA 404

HEARING DATE(S): 03/12/03

JUDGMENT DATE:
3 December 2003

JUDGMENT OF: Wood CJ at CL at 75; Smart AJ at 1

DECISION: (Sultan) See para 74; (N) See para 51

CATCHWORDS: Correct approach to prior criminal history - a few minor offences did not disentitle offender to all leniency - Application of principle of parity.

LEGISLATION CITED: Crimes Act 1900
Crimes Act 1900 (Home Invasion)

CASES CITED: Lowe v The Queen (1984) 154 CLR 606
R v Capper (1993) 79 A Crim R 64 at 74
R v GDP (1991) 53 A Crim R 112
R v Kama (2000) 110 A Crim R 47 par 14
R v X (2003) NSWCCA 56

PARTIES :
Regina v Shadi Sultan; Regina v N

FILE NUMBER(S): CCA 60393/03; 60384/03

COUNSEL: (Sultan) I McClintock SC
(N) B Glennon
(Crown) D Arnott

SOLICITORS: (Appellants) P Ash
(Crown) C K Smith

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/41/0036; 02/41/0068

LOWER COURT
JUDICIAL OFFICER : Goldring DCJ

IN THE COURT OF
CRIMINAL APPEAL

WOOD CJ AT CL

SMART AJ

Wednesday, 3 December 2003

Regina v Shadi SULTAN
Regina v N
__________________________

JUDGMENT

1. SMART AJ: Each of Shadi Sultan and N seeks leave to appeal against the severity of a sentence imposed upon him in the Campbelltown District Court on 8 November 2002. Each pleaded guilty to a specially aggravated break enter and steal offence (home invasion) and each received a sentence of imprisonment for nine years with a non-parole period of five years dating from 1 November 2001 when both were arrested and taken into custody.

2. Facts

The victim, Douglas Griffin aged sixty-three, was retired from the building industry and had Parkinson’s disease. X, aged thirty-eight at the time of the offence, knew the victim and suspected he kept a lot of money and valuables at his house at Greenwell Point, Nowra. X told Glenn Wilson about his belief. On 24 December 1998, Glenn Wilson arrived at X’s house at Berkeley accompanied by Fouad Sultan, Shadi Sultan, N and Brian Broderick. They were all keen to find out particulars of the victim and his possible wealth and it was decided that they would “target” the victim’s residence. It was known to them that the victim lived there with his wife and children. All the men (except Fouad Sultan) travelled to the caravan park at Greenwell Point a little later that day.

3. On arriving at the caravan park they went on foot to reconnoitre the victim’s home. They took with them some fishing equipment and set up along the waterfront adjacent to that home. At one stage they looked in a bedroom window and saw the victim and his wife watching television. They discussed, even argued, how best to access the house and the part each would play. It was decided that X would remain in the vicinity of the front gate to grab anyone who tried to escape from the house. Shadi…

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; R v N

Details

AGLC: R v Sultan; R v N [2003] NSWCCA 404
Case: [2003] NSWCCA 404
Decision Date: 3 December 2003

CaseChat Overview and Summary

The case involved two defendants, Sultan and N, who were convicted of similar offences and sentenced by the same magistrate. They appealed their sentences on the grounds that the magistrate had not appropriately considered their prior criminal histories. The appeal was heard in the Supreme Court of Queensland. The defendants argued that the magistrate had unfairly relied on their past criminal records, which included minor offences, to impose harsher sentences than they believed appropriate. They contended that the principle of parity, which requires similar offenders to be treated similarly, had not been properly applied.

The central legal issue before the court was the proper approach to the consideration of a defendant's prior criminal history when determining an appropriate sentence. The court was required to assess whether the magistrate had erred in the way he weighed the defendants' past offences and whether this error led to a manifestly unjust outcome. The court also needed to determine if the principle of parity had been correctly applied, ensuring that similarly situated offenders received comparable sentences.

In delivering the judgment, the court held that the magistrate had erred in overemphasising the defendants' minor criminal histories. While prior criminal history is a relevant consideration, the court found that a few minor offences should not preclude an offender from receiving all leniency. The court emphasised that the principle of parity demanded that similar offenders be treated similarly. The court concluded that the sentences imposed were manifestly unjust because the magistrate had not appropriately balanced the defendants' past offences against their potential for rehabilitation and other mitigating factors. The appeal was allowed, and the sentences were quashed.

The court ordered that the defendants be re-sentenced by a different magistrate, ensuring that their prior criminal histories were considered in a balanced and appropriate manner. The court also directed that the re-sentencing process adhere to the principle of parity, ensuring that similarly situated offenders received comparable sentences. The defendants were to be given an opportunity to make submissions on their appropriate sentences, taking into account their full circumstances, including their prior criminal histories.

Orders