Raad v The Queen - [2015] NSWCCA 276

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Raad v R [2015] NSWCCA 276
Hearing dates: 19 October 2015
Date of orders: 04 November 2015
Decision date: 04 November 2015
Before: Bathurst CJ [1]
Hidden J at [2]
Davies J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – firing a firearm at a dwelling house with reckless disregard for safety – sentence – early plea – whether discount given for plea – no mention of discount in sentencing remarks – consideration of transcript of sentencing hearing – basis of sentence explained in exchanges with counsel – discount built into sentence imposed.
Cases Cited: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Peiris v R [2014] NSWCCA 58
R v Robinson [2014] NSWCCA 12
RCW v R (No. 2) [2014] NSWCCA 190
Thammavongsa v Regina [2015] NSWCCA 107
Wei v R [2015] NSWCCA 66
Category: Principal judgment
Parties: Hassan Raad (Applicant)
Crown
Representation:
Counsel:
G James SC (Applicant)
E Balodis (Crown)
Solicitors:
Bo Yi Ye (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/143794
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 June 2014

Before:

Madgwick ADCJ

File Number(s):

2013/143794

Judgment

BATHURST CJ: I agree with the orders proposed by Davies J and with his Honour’s reasons.
HIDDEN J: I agree with Davies J.
DAVIES J: On 9 May 2013 the Applicant was charged with firing a firearm at a dwelling house with reckless disregard for the safety of any person. The maximum sentence for this offence is 14 years imprisonment. There is a standard non-parole period of 5 years. He was subsequently charged with two offences of possessing a prohibited drug, being an amount of cannabis and 1.2 grams of amphetamine, and an offence of assault occasioning actual bodily harm in company.
He pleaded guilty to the firearm offence on 3 February 2014 at Burwood Local Court and was committed to the District Court for sentence. He was sentenced by Madgwick ADCJ on 23 June 2014 after a sentence hearing involving both the applicant and the co-offender in the firearm offence, Mohamad Ojaghi, on 20 June 2014. The offences of assault occasioning actual bodily harm and possession of drugs were dealt with by two Form 1 documents.
The Applicant was sentenced to a non-parole period of three years and six months commencing 9 May 2013 and expiring 8 November 2016 with an additional term of two years and six months expiring 8 May 2019.
The Applicant now appeals on one ground as follows:

His Honour erred in failing to give consideration to and reflect in the sentence and non-parole period the Applicant's early plea notwithstanding section 21A(3)(k) and section 22 of the Crimes (Sentencing Procedure Act) (1999) and despite the Crown's concession that the early plea of guilty should attract a discount of 25% on sentence.

Facts

The facts involving the offence may be…

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 The Queen

Details

AGLC: Raad v The Queen [2015] NSWCCA 276
Case: [2015] NSWCCA 276
Decision Date: 04 November 2015

CaseChat Overview and Summary

In the case of Raad v The Queen, the appellant was convicted of firing a firearm at a dwelling house with reckless disregard for safety. The case was heard in the High Court of Australia. The central issue for the court was whether the trial judge appropriately accounted for the appellant's early guilty plea when determining the sentence. Although the trial judge did not explicitly mention the discount for the early plea in the sentencing remarks, the court had to determine if the discount was nonetheless incorporated into the sentence imposed.

The court examined the sentencing remarks and the transcript of the sentencing hearing to discern whether the trial judge had considered the discount for the early plea. The court concluded that the basis of the sentence was explained during the exchanges with counsel, and that the discount for the early plea was effectively built into the sentence. The court held that the trial judge did, in fact, consider the discount, and that it was incorporated into the overall sentence despite not being explicitly mentioned in the sentencing remarks.

Given the findings, the court dismissed the appeal against sentence. The court found that the trial judge had indeed accounted for the early plea in determining the sentence, even though this was not explicitly stated in the sentencing remarks. The court's reasoning was that the transcript and exchanges with counsel provided clear evidence that the discount was considered and integrated into the sentence imposed. Therefore, the sentence remained valid as determined by the trial judge.

Orders