Regina v Azar - [2000] NSWCCA 26

CITATION: REGINA v. AZAR [2000] NSWCCA 26

FILE NUMBER(S): CCA 60342 of 1999

HEARING DATE(S): Monday 21 February 2000

JUDGMENT DATE:
21 February 2000

PARTIES :

REGINA v.
AZAR, Maurice Joseph

JUDGMENT OF: Grove J at 20; Greg James J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/31/0413

LOWER COURT JUDICIAL
OFFICER : Job, DCJ.

COUNSEL : Crown: M. Grogan
App: S. Odgers

SOLICITORS: Crown: S.E. O'Connor
App: T.A. Murphy

CATCHWORDS: Criminal law - sentence - fresh evidence - medical condition of much greater seriousness than known at time of sentencing - effect of condition on trial judge's assessment of prospects of recidivism

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
Veen (No. 2) (1988) 164 CLR 465

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL
No. 60342 of 1998 CORAM: GROVE, J.
GREG JAMES, J.

MONDAY 21 FEBRUARY 2000

REGINA v. MAURICE JOSEPH AZAR
JUDGMENT
1 GROVE, J: The Court is in a position to give judgment. I will ask Greg James, J. to give the first judgment. 2 GREG JAMES, J: Application for leave to appeal against sentence is brought in respect of sentences imposed by his Honour Judge Job QC. in the District Court at Newcastle on 24 June 1998. His Honour imposed sentences in respect of three counts on an indictment, two of them being counts of break and enter, each punishable by a maximum sentence of 14 years penal servitude, and one count of receiving under s.188 of the Crimes Act 1900, an offence punishable by a maximum penalty of 10 years penal servitude. In addition there were some 16 matters taken into account on a Form 1. These comprised offences of breaking and entering and larceny, but mainly of offences of the receiving of stolen goods. The offences included two offences of supply prohibited drugs, that is obtaining stolen goods in exchange for cannabis. There were also offences of possessing housebreaking implements and entering land with intent to steal and possessing stolen goods. 3 In respect of those offences his Honour imposed on the receiving count in the indictment a period of four years penal servitude by way of fixed term dating from 7 July 1997 on which date the applicant entered into custody for these offences, and on the first offence of break, enter and steal, taking into account the matters contained in the Form 1, his Honour sentenced the applicant to a total term of eight years penal servitude to commence at the expiration of the fixed term for the receiving offence, ie., 6 July 2009. For the second offence of break, enter and steal his Honour appears to have imposed a similar sentence, the effect being that the total sentences involved a sentence of some nine years minimum term and an additional term of three years, that total sentence commencing on 7 July 1997. 4 The sentences were imposed upon the applicant in the light of his extensive prior record. His Honour, when dealing with that…

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 Regina v Azar

Details

AGLC: Regina v Azar [2000] NSWCCA 26
Case: [2000] NSWCCA 26
Decision Date: 21 February 2000

CaseChat Overview and Summary

The case of Regina v Azar involved the respondent, Azar, who was sentenced to imprisonment following a conviction for a criminal offence. The central issue in the case was whether the trial judge had considered the respondent's serious medical condition, which was unknown at the time of sentencing, in assessing the likelihood of recidivism. The High Court of Australia heard the appeal and had to determine the appropriate legal principles for assessing the impact of fresh evidence on a sentence already imposed.

The court was required to decide whether the trial judge's failure to consider the respondent's medical condition constituted a significant error in the sentencing process, warranting a reduction in the sentence. The appeal hinged on whether the medical condition could have influenced the trial judge's assessment of the respondent's prospects of recidivism and, consequently, the length of the sentence imposed. The court had to weigh the relevance and weight of the fresh evidence against the principles of finality and consistency in sentencing.

In its decision, the court concluded that the trial judge's failure to consider the respondent's serious medical condition constituted a significant error in the sentencing process. The court held that the medical condition could have influenced the trial judge's assessment of the respondent's prospects of recidivism and, therefore, warranted a reduction in the sentence. The High Court found that the seriousness of the error justified a reduction in the sentence, and the appeal was allowed. The court ordered that the sentence be reviewed and reduced accordingly, reflecting the impact of the fresh evidence on the original sentencing decision.

Orders