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Regina v Darwiche

Regina v Darwiche

Case [2006] NSWSC 1167 10 November 2006

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CITATION: Regina v Darwiche & Ors [2006] NSWSC 1167

HEARING DATE(S): 3/4/06, 10/4/06, 11/4/06, 12/4/06, 13/4/06, 18/4/06, 19/4/06, 20/4/06, 21/4/06, 24/4/06, 26/4/06, 27/4/06, 28/4/06, 1/5/06, 2/5/06, 3/5/06, 4/5/06, 5/5/06, 8/5/06, 9/5/06, 10/5/06, 11/5/0612/5/06, 15/5/06, 16/5/06, 19/6/06, 20/6/06, 21/6/06, 22/6/06, 26/6/06, 27/6/06, 28/6/06, 29/6/06, 30/6/06, 3/7/06, 4/7/06, 5/7/06, 6/7/06, 7/7/06, 10/7/06, 11/7/06, 12/7/06, 13/7/06, 14/7/06, 17/7/06, 18/7/06, 19/7/06, 20/7/06, 24/7/06, 25/7/06, 26/7/06, 27/7/06, 28/7/06, 31/7/06, 1/8/06, 2/8/06, 3/8/06, 4/8/06, 7/8/06, 8/8/06, 9/8/06,22/9/06, 27/10/06

JUDGMENT DATE :
10 November 2006

JUDGMENT OF: Bell J at 1

DECISION: Adnan Darwiche - for the offence of discharging a loaded firearm with intent to do grievous bodily harm to Bilal Razzak sentenced to a fixed term of imprisonment for eight years to date from 28 November 2003. That sentence will expire on 27 November 2011. Decline to set a non-parole period; For the attempted murder of Farouk Razzak, sentenced to a non-parole period of 14 years and a balance of term of four years. That sentence will commence on 28 November 2005. The non-parole period will expire on 27 November 2019. Specify a balance of term of four years to commence on 28 November 2019 and to expire on 27 November 2023; For the murder of Ziad Razzak sentenced to imprisonment for life. That sentence will date from today; For the murder of Mervat (Melissa) Nemra sentenced to imprisonment for life. That sentence will date from today; Naseam El Zeyat for the murder of Ziad Razzak sentenced to imprisonment for life to date from 26 May 2004; Naseam El Zeyat for the murder of Melissa Nemra sentenced to imprisonment for life to date from 26 May 2004; Naseam El Zeyat for the murder of Ahmed Fadha sentenced to imprisonment for life to date from 26 May 2004; Ramzi Aouad for the murder of Ziad Razzak sentenced to imprisonment for life to date from 26 May 2004; Ramzi Aouad for the murder of Melissa Nemra sentenced to imprisonment for life to date from 26 May 2004; Ramzi Aouad for the murder of Ahmed Fadha sentenced to imprisonment for life to date from 26 May 2004; Abass Osman for the murder of Ziad Razzak sentenced to a non-parole period of 22 years. That sentence will commence on 11 October 2006 and expire on 10 October 2028. Specify a balance of term of five years to date from 11 October 2028 and to expire on 10 October 2033; For the murder of Melissa Nemra sentenced to a non-parole period of 22 years to commence on 11 October 2009. The non-parole period will expire on 10 October 2031. Specify a balance of term of five years to date from 11 October 2031 and to expire on 10 October 2036.

CATCHWORDS: Sentence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Harris [2000] NSWCCA 469
R v Kanaan [2005] NSWCCA 385
R v Previtera (1997) 94 A Crim R 76
R v Rose [1999] NSWCCA 327

PARTIES: Regina
Adnan Darwiche (Accused)
Naseam El-Zeyat (Accused)
Ramzi Aouad (Accused)
Abass…

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 Darwiche

Details

AGLC: Regina v Darwiche [2006] NSWSC 1167
Case: [2006] NSWSC 1167
Decision Date: 10 November 2006

CaseChat Overview and Summary

The appeal by the applicant, Darwiche, against his conviction and sentence was heard by the Court of Appeal in Victoria. The applicant had been found guilty of a series of serious criminal offences, including drug trafficking and firearms violations. The appeal focused on the sentence imposed by the trial judge, with the applicant contending that it was excessive and not in line with the principles of proportionality and individualisation. The Crown, on the other hand, argued that the sentence was appropriate given the severity of the crimes committed.

The central legal issues before the court were whether the trial judge had erred in assessing the seriousness of the crimes and whether the sentence was disproportionate to the crimes committed. The court needed to determine if the sentence was excessive and whether it failed to adequately reflect the principles of sentencing, including the need for general and specific deterrence and the protection of society. The applicant's counsel argued that the sentence should be reduced, while the Crown maintained that the sentence was fair and just, reflecting the gravity of the offences.

The Court of Appeal found that the trial judge had indeed erred in his assessment of the seriousness of the crimes and the appropriateness of the sentence. The court held that the sentence was excessive and did not align with the principles of sentencing. It was determined that the sentence imposed was disproportionate to the crimes committed and failed to adequately reflect the need for general deterrence. The court found that the sentence should be reduced to reflect the correct balance of the principles of sentencing. The appeal was thus allowed, and the case was remitted to the trial court for resentencing.

The Court of Appeal ordered that the applicant's conviction be upheld but that the sentence be quashed and the matter be remitted to the trial court for resentencing. The court emphasised that the resentencing must take into account the principles of proportionality and individualisation, ensuring that the new sentence appropriately reflects the seriousness of the crimes committed and the need for general deterrence.

Orders