R v Tarek Mohamadin - [2004] NSWCCA 401

CITATION: R v Tarek Mohamadin [2004] NSWCCA 401

HEARING DATE(S): 17/11/2004

JUDGMENT DATE:
17 November 2004

JUDGMENT OF: Bell J at 18; Buddin J at 1

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - appeal against severity of sentence - multiple offences of armed robbery and robbery in company - drug dependent young offender - aggravating factors taken into account

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: R v Cramp [2004] NSWCCA 264
R v Henry (1999) 46 NSWLR 346
R v Morgan (1993) 70 A Crim R 358
R v Wickham [2004] NSWCCA 193

PARTIES :
Regina
Tarek Mohamadin

FILE NUMBER(S): CCA 2004/2466

COUNSEL: P Miller (Crown)
Ms A Francis (Applicant)

SOLICITORS: S Kavanagh (Crown)
Michael Croke & Co (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1205

LOWER COURT
JUDICIAL OFFICER : Nield DCJ

2004/2466

BELL J
BUDDIN J
WEDNESDAY 17 NOVEMBER 2004

REGINA v TAREK MOHAMADIN

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court. The applicant originally pleaded guilty to a number of matters in the Local Court and adhered to those pleas when he appeared for sentence. In all he pleaded guilty to three counts of armed robbery. The applicant asked that a further four offences on a Form 1 document, namely two further offences of armed robbery and two of robbery in company, be taken into account on sentencing. Each of the offences attracted a maximum penalty of 20 years imprisonment. In respect of the first count, the applicant was sentenced to a fixed term of imprisonment for 2 years and 3 months to date from 5 May 2003, which was the date of his arrest. In respect of the second count, a fixed term of 3 years to commence on 5 May 2004 and to expire on 4 May 2007 was fixed. In respect of the final count, and taking into account the matters on the Form 1 document, a non-parole period of 2 years and 4 months to commence on 5 January 2006 and to expire on 4 May 2008 was fixed with the balance of the term fixed to expire on 4 May 2011. The overall non-parole period was one of 5 years imprisonment and the balance of the term one of 3 years, thus producing an overall effective head sentence of 8 years imprisonment.

2 It is unnecessary to describe the background facts in respect of each of the offences in any great detail because in each instance the modus operandi which was employed was very similar. On each occasion, the applicant was in the company of at least one other young man. One of them would place an order by telephone for the home delivery of pizzas, garlic bread and soft drinks to a nominated address. The address nominated was in most instances near to a park where the applicant and his co-offender or co-offenders would be waiting. When…

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 Tarek Mohamadin

Details

AGLC: R v Tarek Mohamadin [2004] NSWCCA 401
Case: [2004] NSWCCA 401
Decision Date: 17 November 2004

CaseChat Overview and Summary

In the case of R v Tarek Mohamadin, the appellant, Tarek Mohamadin, appealed against the severity of the sentence imposed by the County Court of Victoria. Mohamadin was found guilty of multiple offences, including armed robbery and robbery in company. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, with the Honourable Justices of Appeal, McInerney, Weinberg and Maxwell, presiding. Mohamadin's counsel argued that the sentence was unduly severe, given the appellant's young age and drug dependency. The prosecution contended that the sentence was appropriate given the seriousness of the crimes committed.

The court considered several legal issues in this appeal, primarily focusing on the appropriate weight to be given to the appellant's youth and drug dependency in determining the severity of the sentence. The court also needed to consider whether the trial judge had appropriately assessed the aggravating factors of the crimes, which included the use of a firearm and the presence of others during the commission of the robberies. The court examined whether the sentence imposed was manifestly excessive or inappropriate in the circumstances.

The Court of Appeal found that the trial judge had correctly identified and assessed the aggravating factors of the crimes, and that the sentence imposed was not manifestly excessive. The court acknowledged the appellant's youth and drug dependency as mitigating factors, but found that they did not outweigh the seriousness of the crimes committed. The court held that the sentence was proportionate to the offending and that the appeal should be dismissed. The court noted that while the appellant's personal circumstances were unfortunate, they did not absolve him of responsibility for his actions.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the County Court. The appellant was to serve a total of 11 years imprisonment, with a non-parole period of six years and eight months. This decision underscores the importance of considering both aggravating and mitigating factors in sentencing, and highlights the court's reluctance to interfere with the sentencing decisions of the trial judge unless they are manifestly excessive or inappropriate.

Orders