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Saraya v The Queen

Saraya v The Queen

Case [2021] NSWCCA 139 2 July 2021

Criminal Liability

Aggravated & Exemplary Damages

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Saraya v R [2021] NSWCCA 139
Hearing dates: 21 May 2021
Date of orders: 2 July 2021
Decision date: 02 July 2021
Before: Bathurst CJ at [1];
Beech-Jones J at [2];
N Adams J at [3].
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME — Appeals — Appeal against sentence – whether sentencing judge erred in assessment of objective seriousness by “double counting” elements of the offence as aggravating features – offence of aggravated enter dwelling house with intent to commit serious indictable offence – where sentencing judge observed that the offenders were “armed with knives” and the entry was an “effective invasion of a domestic dwelling at night” – held, it was necessary for sentencing judge to have regard to the type of weapon used and the nature of the entry into the dwelling – whether sentence manifestly excessive – where offence was found to be above the mid-range of objective seriousness – lack of favourable subjective case – held, no error

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 32
Crimes Act 1900 (NSW), ss 4, 33, 59(2), 61, 111(2), 112, 192E
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Dyer v R [2011] NSWCCA 185
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
JM v R [2014] NSWCCA 297
Kennedy v R [2013] NSWCCA 19
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pleace v R [2017] NSWCCA 112
R v Kollas and Mitchell [2002] NSWCCA 491
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Z v R [2015] NSWCCA 274

Category: Principal judgment
Parties: Youssaf Saraya (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr E Ozen SC (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Abbas Jacobs Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/136340
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 January 2020

Before:

Latham ADCJ

File Number(s):

2019/136340

Judgment

BATHURST CJ: I agree with the orders proposed by N Adams J and with her Honour’s reasons.
BEECH-JONES J: I agree with N Adams J and the orders her Honour proposes.
N ADAMS J: The applicant, Youssaf Saraya, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by Latham ADCJ on 24 January 2020. He pleaded guilty in the Local Court to the following offences:

Count 1: Aggravated enter dwelling-house with intent to commit a serious indictable offence contrary to s 111(2) of the Crimes Act 1900 (NSW) (maximum penalty of 14 years imprisonment);
Count 2: Assault occasioning actual bodily harm in company contrary to s…

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 Saraya v The Queen

Details

AGLC: Saraya v The Queen [2021] NSWCCA 139
Case: [2021] NSWCCA 139
Decision Date: 02 July 2021

CaseChat Overview and Summary

Saraya v The Queen involved an appeal against the sentence imposed by the sentencing judge on the appellant, who was convicted of aggravated enter dwelling house with intent to commit a serious indictable offence. The appellant argued that the sentencing judge erred in assessing the objective seriousness of the offence by considering certain elements as aggravating features. Specifically, the appellant contended that the sentencing judge "double counted" by considering both the fact that the offenders were armed with knives and that the entry was an effective invasion of a domestic dwelling at night. The appellant further argued that the sentence imposed was manifestly excessive, given that the offence was found to be above the mid-range of objective seriousness and there was a lack of a favourable subjective case.

The court considered whether the sentencing judge erred in assessing the objective seriousness of the offence by taking into account the type of weapon used and the nature of the entry into the dwelling. The court held that it was necessary for the sentencing judge to have regard to these factors in determining the gravity of the offence. The court also considered whether the sentence imposed was manifestly excessive. The court held that the sentence was not manifestly excessive, given that the offence was found to be above the mid-range of objective seriousness and there was a lack of a favourable subjective case. The court found no error in the sentencing judge's assessment of the objective seriousness of the offence or in the sentence imposed.

The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld. The court held that the sentencing judge did not err in assessing the objective seriousness of the offence or in imposing the sentence. The court found that the sentence was not manifestly excessive, given the nature of the offence and the lack of a favourable subjective case. The appellant's appeal was therefore dismissed, and the sentence imposed by the sentencing judge was upheld.

Orders