Raad v R

Case [2011] NSWCCA 138 10 August 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RAAD v R [2011] NSWCCA 138
Hearing dates: 1 February 2011
Decision date: 10 August 2011
Before: McClellan CJ at CL at [1]
Adams J at [2]
Buddin J at [73]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal and quash the sentence imposed at first instance.
(3) Substitute a sentence comprising a non-parole period of 9 years commencing on 7 February 2008 and expiring on 6 February 2017 and a balance of term of 3 years expiring on 6 February 2020.
(4) The applicant is eligible for parole on 6 February 2017.

Catchwords: CRIMINAL LAW - felony murder during armed robbery - offender volunteered offences to police 7 years after commission - no link between offender and offence - no prospect of authorities identifying offender.
CRIMINAL LAW - sentencing - policy - leniency for offender volunteering offence - s 23 Crimes (Criminal Procedure) Act 1999 - whether special circumstances warranting variation of statutory ratio.
Legislation Cited: Crimes Act 1900
Crimes (Criminal Procedure) Act 1999
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Baxter v The Queen (2007) 173 A Crim R 284
Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194
Douar v The Queen (2005) 159 A Crim R 154
Ellis v R (1993) 68 A Crim R 449
Gore and Hunter v R [2010] NSWCCA 330
Hili v The Queen; Jones v The Queen [2010] HCA 45
Makarian v The Queen [2005] HCA 25
Power v The Queen (1974) 131 CLR 623
R v Barker [2001] NSWSC 295
R v Baldacchino [1998] NSWSC 723
R v Bawden (unreported, NSWSC 30 October 1992)
R v Ellis (1986) 6 NSWLR 603
R v Harris [2000] NSWSC 285
R v Henry (1999) 46 NSWLR 346
R v JSK [2004] NSWSC 470
R v Markarian (2005) 228 CLR 357
R v McCabe (unreported, NSWCCA 14 October 1991)
R v MHN [1998] NSWSC 533
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Wong v The Queen (2001) 207 CLR 584
Category: Principal judgment
Parties: Saeb Raad (Applicant)
Regina (Respondent)
Representation: Counsel
J Manuell SC (Applicant)
J Girdham (Respondent)
Solicitors
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/15481
Decision under appeal

Citation:

R v Raad [2009] NSWSC 830

Date of Decision:

2009-08-20 00:00:00

Before:

Rothman J

File Number(s):

2008/15481

Judgment

McCLELLAN CJ at CL : I agree with Buddin J.

ADAMS J : The applicant seeks leave to appeal against the sentence imposed on 20 August 2009 in this Court for offences of armed robbery and murder committed on 3 September 2001. For the latter offence he was sentenced to a term of 14 years imprisonment commencing 7 February 2008 with a non-parole period of ten years and six months and, for the former, to a concurrent fixed…

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 Raad v R

Details

AGLC: Raad v R [2011] NSWCCA 138
Case: [2011] NSWCCA 138
Decision Date: 10 August 2011

CaseChat Overview and Summary

In the case of Raad v R, the defendant was charged with murder under the felony murder rule as it applied to the crime of armed robbery. The prosecution alleged that the defendant had been involved in an armed robbery where a death occurred, even though the defendant did not directly cause the death. The defendant volunteered information to police about the offence seven years after it had occurred, but there was no link between the defendant and the offence, and no prospect of the authorities identifying the actual offender. The case was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the defendant could be convicted of murder under the felony murder rule given the circumstances. Additionally, the court had to determine whether special circumstances existed to warrant a variation from the statutory sentencing ratio under section 23 of the Crimes (Criminal Procedure) Act 1999, given the defendant's cooperation in volunteering information about the offence.

The court found that the defendant could not be convicted of murder under the felony murder rule because there was no direct link between the defendant and the offence. Given the lack of a connection to the actual offender, and the absence of any prospect of the authorities identifying the true perpetrator, the court held that the defendant's voluntary disclosure of information to the police was insufficient to establish the necessary elements of the crime. Furthermore, the court considered whether special circumstances warranted a variation from the statutory sentencing ratio. It found that while the defendant's cooperation was commendable, it did not rise to the level of special circumstances that would warrant a departure from the statutory guidelines. The court concluded that the defendant's actions did not sufficiently mitigate the seriousness of the offence to warrant a variation in the sentencing ratio. Consequently, the court upheld the statutory sentencing guidelines, resulting in a sentence that aligned with the prescribed ratio.

Orders