Basten JA at [1]; Hall J at [91]; Beech-Jones J at [92]
Decision:
In respect of the respondent Tannous:
(1) Set aside the sentence imposed by Syme DCJ in the District Court on 27 January 2012.
(2) Resentence the offender as follows:
(a) with respect to the offence of participating in a criminal group, contrary to s 93T(1) of the Crimes Act, impose a fixed term of imprisonment of 12 months to date from 27 January 2012;
(b) with respect to the offence of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act, impose a sentence of imprisonment consisting of a non-parole period of 18 months and a balance of term of nine months, commencing on 27 July 2012.
(3) Direct that the time served by the offender pursuant to the sentence imposed in the District Court is to count as part of the sentence imposed by this Court.
(4) Direct that Mr Tannous be released on parole on 26 January 2014.
In respect of the respondent Fahda:
(1) Set aside the sentence imposed by Syme DCJ in the District Court on 27 January 2012.
(2) Resentence the offender as follows:
With respect to the offence of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act, impose a sentence consisting of a non-parole period of 20 months and a balance of term of 12 months, commencing on 27 January 2012.
(3) The time served by the offender pursuant to the sentence imposed in the District Court is to count as part of the sentence imposed by this Court.
(4) Direct that Mr Fahda be released on parole on 26 September 2013.
In respect of the respondent Dib:
(1) Set aside the sentence imposed by Syme DCJ in the District Court on 23 February 2012.
(2) Resentence the offender as follows:
With respect to the offence of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act, impose a sentence consisting of a non-parole period of 20 months and a balance of term of 12 months, commencing on 23 February 2012.
(3) The time served by the offender pursuant to the sentence imposed in the District Court is to count as part of the sentence imposed by this Court.
(4) Direct that Mr Dib be released on parole on 22 October 2013.
Catchwords:
CRIMINAL LAW - appeal against sentence - evidence of offender's experience of sentence prior to appeal - whether open to offender to rely on such evidence to demonstrate that sentence unduly severe or not unduly lenient - such whether evidence may be taken into account upon re-sentencing
CRIMINAL LAW - Crown appeal against sentence - discretion to decline to intervene - whether delay between arrest and sentence, anxiety caused…
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.
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Details
AGLC
R v Tannous [2012] NSWCCA 243
Case
[2012] NSWCCA 243
Decision Date
CaseChat Overview and Summary
The appellant, Tannous, was convicted of facilitating car rebirthing activities on an organised basis. The Crown appealed the sentence imposed by the District Court, arguing that it was unduly lenient. The appeal was heard in the Court of Criminal Appeal. The appellant sought to rely on evidence of his experience of the sentence, arguing that it was unduly severe. The Crown, on the other hand, argued that the sentence was lenient and should not be increased.
The court had to decide whether the appellant could rely on evidence of his experience of the sentence to demonstrate that it was unduly severe. The court also had to consider the discretion to decline to intervene in a Crown appeal against sentence, taking into account factors such as the delay between arrest and sentence, anxiety caused by the Crown appeal, and parity with the sentence imposed on a co-offender. The court further had to consider the suitability assessment for an intensive correction order and whether it was a pre-condition of making such an order. The court also had to decide whether offenders re-sentenced to full-time imprisonment should have the benefit of time served under an intensive correction order. Finally, the court had to consider whether a full-time custodial sentence was warranted for facilitating car rebirthing activities on an organised basis.
The court held that the appellant could not rely on evidence of his experience of the sentence to demonstrate that it was unduly severe. The court also held that the delay between arrest and sentence, anxiety caused by the Crown appeal, and parity with the sentence imposed on a co-offender were relevant factors in exercising the discretion to decline to intervene in a Crown appeal against sentence. The court held that a suitability assessment was not a pre-condition of making an intensive correction order, but that the sentencing court must impose conditions. The court also held that offenders re-sentenced to full-time imprisonment should have the benefit of time served under an intensive correction order. Finally, the court held that a full-time custodial sentence was warranted for facilitating car rebirthing activities on an organised basis.
The court allowed the Crown appeal, set aside the sentence imposed by the District Court, and re-sentenced the appellant to a full-time custodial sentence of two years, with a non-parole period of one year. The appellant was also ordered to serve 57 days already served under an intensive correction order.