Regina v Barakat - [2005] NSWCCA 143

CITATION:
Regina v Barakat [2005] NSWCCA 143

HEARING DATE(S): 14 April 2005

JUDGMENT DATE:

14 April 2005

JUDGMENT OF:
Wood CJ at CL at 25; Grove J at 2; Hoeben J at 26

DECISION:
CROWN APPEAL DISMISSED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - DISCHARGE FIREARM IN PUBLIC PLACE - SHOTS FIRED IN AIR TO DISSUADE ARMED INTRUDER - SENTENCE - OFFENDER SUBJECT TO CUSTODY FOR UNRELATED OFFENCES - ERRONEOUS SUBMISSION BY CROWN THAT SUSPENDED SENTENCE BE ORDERED - SHORT BOND TO BE OF GOOD BEHAVIOUR IMPOSED - MANIFEST INADEQUACY - SUBSTANTIAL UNEXPLAINED DELAY IN PREFERRING CHARGE - OFFENDER'S PAROLE ELIGIBILITY DATE IMMINENT - IN COMBINATION VERY UNUSUAL CIRCUMSTANCES - LIMITED REALISTIC SENTENCING OPTION - DISCRETION EXERCISED TO DISMISS APPEAL

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Edigarov 2001 125 A Crim R 551

PARTIES:
Regina v Nader Barakat

FILE NUMBER(S):
CCA 2005/276

COUNSEL:
D. Arnott (Crown/Applicant)
D. Stewart (Respondent)

SOLICITORS:
S. Kavanagh (DPP)
Ross Hill & Associates (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0157

LOWER COURT JUDICIAL OFFICER:
Andrew ADCJ

2005/276

WOOD CJ at CL
GROVE J
HOEBEN J
14 April 2005

REGINA v NADER BARAKAT

Judgment

1 WOOD CJ AT CL: I will ask Grove J to deliver the first judgment.

2 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Andrew ADCJ in the District Court.

3 The respondent had pleaded guilty to a single charge of discharging a firearm in a public place contrary to s 93G(1)(b) of the Crimes Act 1900 which offence carries a prescribed maximum penalty of ten years imprisonment. His Honour ordered the respondent to enter into a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (the Act) for a period of six months, commencing on the date of imposition of sentence (28 January 2005). It would therefore expire on 27 July 2005. The usual conditions as to good behaviour, notification of change of address and appearance if called upon during the currency of the bond were imposed.

4 It might be noted at the outset that at the first instance hearing the Crown Prosecutor conceded that this particular offence might appropriately be met by a sentence of imprisonment "after the release date in May" suspended pursuant to s 12 of the Act abovementioned. The Crown now recognises a defect in that concession and I will return to it, but a principal focus of its submission in the appeal is that, in the circumstances, what was imposed amounted to very little effectual punishment at all. This can be perceived by reference to the circumstances of the offence and the respondent's history.

5 On the afternoon of Friday 13 October 2000 the respondent was at his home at Dulwich Hill. At the time there was in existence a family dispute and a relative (by marriage) of the respondent arrived at his premises which was a unit in a complex of residences.…

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 Barakat

Details

AGLC: Regina v Barakat [2005] NSWCCA 143
Case: [2005] NSWCCA 143
Decision Date: 14 April 2005

CaseChat Overview and Summary

In the case of Regina v Barakat, the appellant was convicted of discharging a firearm in a public place after firing shots in the air to deter an armed intruder. The Court of Appeal heard an appeal against the sentence imposed by the lower court. The primary legal issue before the Court was whether the sentence imposed was manifestly inadequate given the circumstances of the case, including the appellant's imminent parole eligibility date and the substantial delay in preferring the charge.

The Court noted that the Crown had incorrectly submitted that a suspended sentence should be ordered, leading to a short bond to be of good behaviour instead. The Court considered the unusual circumstances of the case, including the appellant's parole eligibility date being imminent, which combined with the unexplained delay in preferring the charge, created a limited set of realistic sentencing options. The Court exercised its discretion to dismiss the appeal, finding that the sentence imposed, while arguably lenient, was not manifestly inadequate given the circumstances.

The Court's reasoning was grounded in the specific context of the case, highlighting the importance of considering the totality of the circumstances in sentencing decisions. The Court acknowledged the unusual nature of the case, including the appellant's impending parole and the unexplained delay in preferring the charge, which together limited the sentencing options available. The Court's decision underscored the need for a balanced approach to sentencing that takes into account all relevant factors, even in cases involving unusual circumstances.

No further orders were made by the Court, as the appeal was dismissed. The Court's decision provided clarity on the application of sentencing principles in cases involving complex and unusual circumstances, reinforcing the importance of a contextual approach to sentencing in criminal cases.

Orders