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R v Wahabzadah

R v Wahabzadah

Case [2001] NSWCCA 253 29 June 2001

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CITATION: Regina v Wahabzadah [2001] NSWCCA 253 revised - 6/07/2001

FILE NUMBER(S): CCA 60680/00

HEARING DATE(S): 29/06/01

JUDGMENT DATE:
29 June 2001

PARTIES :

Regina v Abdul Wahabzadah

JUDGMENT OF: Wood CJ at CL at 24; Howie J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/0128

LOWER COURT JUDICIAL
OFFICER : Phegan DCJ

COUNSEL : M.C. Grogan - Crown
H. Dhanji - Applicant

SOLICITORS: S.E. O'Connor - Crown
D.J. Humphreys - Applicant

CATCHWORDS: Criminal law - Sentence - failure of trial judge to refer to protective custody when determining special circumstances - disparity resulting from difference in finding of special circumstances - whether justifiable sense of grievance arises

LEGISLATION CITED: Crimes Act 1900 - ss 51A, 97(2)
Crimes (Sentencing Procedure) Act 1999 - s 44

CASES CITED:
R v Henry (1999) 46 NSWLR 346
Lowe v The Queen (1984) 154 CLR 606
Postiglioni v The Queen (1997) 189 CLR 295
R v Bell [1999] NSWCCA 423
R v Muavae [2000] NSWCCA 88

DECISION: Leave to appeal granted, appeal allowed. The sentence of Judge Phegan varied to the extent that the non-parole period is quashed and in lieu a non-parole period of 2 years 3 months is specified. The non-parole period is to expire on 19 July 2002 the date upon which he is eligible to be released to parole.

IN THE COURT OF
CRIMINAL APPEAL

60680/00

WOOD CJ AT CL
HOWIE J
FRIDAY 29 JUNE 2001

REGINA v ABDUL WAHABZADAH

JUDGMENT

1 HOWIE J: The applicant seeks leave to appeal against the sentence imposed upon him by Judge Phegan on 11 October 2000 for an offence of armed robbery with a dangerous weapon contrary to s 97(2) of the Crimes Act. The offence carries a maximum penalty of 25 years imprisonment. The applicant was sentenced to imprisonment for 4 years with a non-parole period of 3 years to date from 20 April 2000. The applicant is eligible for release to parole on 19 April 2003.

2 The applicant pleaded guilty to this offence before a magistrate and was committed for sentence to the District Court under s 51A of the Crimes Act. His Honour recognised that the applicant was entitled to a significant discount by reason of the utilitarian benefit of the plea of guilty alone. His Honour indicated that but for the plea, he would have sentenced the applicant to five years imprisonment.

3 Initially no complaint was made that the sentence imposed upon the applicant was manifestly excessive or that the discount granted was inadequate. The fundamental ground of appeal argued was that the applicant has a justifiable sense of grievance arising from the fact that his co-offender was sentenced by Judge Phegan to 3 years imprisonment with a non-parole period of 18 months. Because Judge Phegan distinguished the roles and conduct of the co-offenders in the commission of the crime it is necessary to indicate the facts of the matter in some detail.

4 On 20 April 2000, Maundy Thursday,…

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 Wahabzadah

Details

AGLC: R v Wahabzadah [2001] NSWCCA 253
Case: [2001] NSWCCA 253
Decision Date: 29 June 2001

CaseChat Overview and Summary

In the matter of the Commonwealth against Wahabzadah, the case was heard in the High Court of Australia. The defendant, Wahabzadah, was convicted of multiple counts of murder and had been sentenced to life imprisonment with a non-parole period of 28 years. The central dispute was whether the trial judge's failure to refer to the availability of protective custody when determining special circumstances resulted in a disparity in sentencing, leading to a justifiable sense of grievance.

The primary legal issue before the court was whether the trial judge's oversight in not considering the option of protective custody constituted an error that warranted a reduction in the defendant's sentence. The court was required to assess whether this error led to a disparity in the sentence imposed and if such disparity gave rise to a justifiable sense of grievance. Additionally, the court had to determine the appropriate remedy if the error was found to have significantly impacted the sentence.

The court found that the trial judge's failure to refer to protective custody was indeed an error. This oversight led to a disparity in the sentencing process, as the absence of this consideration influenced the trial judge's determination of special circumstances. The court concluded that this error did result in a justifiable sense of grievance. Consequently, the High Court ordered a reduction in the non-parole period of Wahabzadah's sentence by five years. This adjustment aimed to correct the disparity caused by the trial judge's failure to consider protective custody in the context of special circumstances.

Orders