Rv Haddad - [2002] NSWCCA 176

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Rv Haddad [2002] NSWCCA 176

FILE NUMBER(S):
60824/01

HEARING DATE(S): 7 May 2002

JUDGMENT DATE: 07/05/2002

PARTIES:
Marwan Haddad v Regina

JUDGMENT OF: Kirby J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/0056

LOWER COURT JUDICIAL OFFICER: Latham DCJ

COUNSEL:
(A) S J Odgers SC
(C) P G Ingram

SOLICITORS:
(A) Galloways
(C) S E O'Connor

CATCHWORDS:
Sentencing; error as to what is capable of mitigating criminality; effect of provocation; serious offence; previous good character and strong subjective features

LEGISLATION CITED:
Nil

DECISION:
See paragraph 36

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL

60824/01
KIRBY J

SMART AJ
Tuesday, 7 May 2002
REGINA v MARWAN HADDAD
JUDGMENT

1.        KIRBY J: The Court is in a position to give judgment. I would ask Justice Smart to give the first judgment.
2.        SMART AJ: Marwan Haddad seeks leave to appeal against the alleged severity of a sentence of imprisonment for eight years with a non-parole period of five years for using an offensive weapon to commit an indictable offence, namely, cause grievous bodily harm, and concurrent sentences of imprisonment for a fixed term of four years on each of two further offences of like kind. The applicant pleaded guilty to all offences. The maximum penalty on each is imprisonment for twelve years. All three offences arose out of the applicant’s use of a motor vehicle at Five Dock when he lost control of himself and injured three people.
3.        About 6.45 pm on 13 July 2000 Mr D A Lynch was riding his motor bike along Patterson Street, Concord towards Five Dock. Mr Lynch stated that shortly after he left Patterson Street and travelled along Gipps Street, he felt a blue Commodore tap him. His right foot was still on the bike foot peg. Mr J J McDermott, an engineer, who was travelling in the same direction stated:
“As I approached the point where Patterson Street turns into Gipps Street I noticed the motor cycle veer on to the wrong side of the road ... There was oncoming traffic and the motor cyclist had to brake heavily to get back on to the correct side of the road.

I continued travelling along Gipps Street, with the motor cycle still about three vehicles in front of me. I stopped at the intersection of Broughton Street and I then noticed a Holden Commodore ... There are two lanes travelling east and the blue Commodore was in the centre lane, and was the first car in the line of traffic. Directly behind the blue Commodore was the motor cycle and I was next to the motor cycle.
... I noticed that the motor cyclist was ‘revving’ the engine of his motor bike whilst he was stationary. I continued on along Queen’s Road. In front of me was the motor cycle and in front of the motor cycle was the blue Commodore. The next set of lights that I had to stop…

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 Rv Haddad

Details

AGLC: Rv Haddad [2002] NSWCCA 176
Case: [2002] NSWCCA 176
Decision Date: 7 May 2002

CaseChat Overview and Summary

In the case of R v Haddad, the defendant faced sentencing following a serious offence that involved significant violence. The court was tasked with determining the appropriate penalty, taking into account various factors including the defendant's character, the circumstances of the offence, and the mitigating factors presented. The case was heard in the Supreme Court, where the trial judge had to weigh the evidence and arguments put forward by both the prosecution and the defence.

The central legal issues before the court were whether the defendant's actions were adequately mitigated by the circumstances of provocation and the extent to which his previous good character and strong subjective features should influence the sentencing decision. The court needed to assess the extent to which these factors could be considered in determining an appropriate penalty for the offence. The defence argued that the defendant's actions, although serious, were significantly influenced by provocation and that his previous good character should be a mitigating factor. The prosecution, on the other hand, contended that the gravity of the offence outweighed any mitigating factors.

The court, after carefully considering the evidence and arguments, found that while the defendant's actions were indeed influenced by provocation, the seriousness of the offence was such that a significant penalty was warranted. The judge acknowledged the defendant's previous good character and the subjective features of the case but ultimately determined that these factors did not sufficiently mitigate the criminality of the offence. The court concluded that a custodial sentence was necessary, reflecting the gravity of the crime and the need to uphold public confidence in the justice system. The court imposed a sentence that balanced the mitigating factors with the need for deterrence and retribution.

Orders