Taha v R

Case [2022] NSWCCA 46 4 March 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Taha v R [2022] NSWCCA 46
Hearing dates: 17 September 2021
Date of orders: 4 March 2022
Decision date: 04 March 2022
Before: McCallum JA at [1]
Walton J at [3]
Fullerton J at [85]
Decision:
(1)   Grant leave to appeal and allow the appeal against sentence with respect to the aggregate sentence imposed.
(2)   Quash the sentence imposed in the District Court on 5 November 2020.
(3)   In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 4 years from 5 November 2020, with a non-parole period of 2 years and 3 months from 5 November 2020.

Catchwords:
CRIME — appeals — appeal against sentence —sentencing judge erred in the consideration of pre-sentence custody – applicant’s borderline intellectual functioning – moral culpability – understanding of offending – re-sentence – independent exercise of discretion – findings on objective seriousness at first instance – applicant’s subjective factors – applicant’s mental condition – dietary considerations – hardships – conditions in custody – COVID-19 – rat infestation – objective gravity of offending – general deterrence – special circumstances – sentence quashed – aggregate term of imprisonment imposed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 2012 (NSW)

Cases Cited:
AB v R [2014] NSWCCA 31
Aslan v R [2014] NSWCCA 114
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154
Doudar v R [2021] NSWCCA 37
Elchiekh v R [2016] NSWCCA 225
House v R (1936) 55 CLR 499; [1936] HCA 40
Jackson v R [2021] NSWCCA 15
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342
R v Douihi [2000] NSWCCA 521
R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445
R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Nykolyn [2003] NSWCCA 229
R v Wright (1997) 93 A Crim R 48
R v Youkhana [2005] NSWCCA 231
RO v R [2019] NSWCCA 183
Sutton v R [2016] NSWCCA 249
Turnbull v R [2019] NSWCCA 97
Young (a pseudonym) v R [2021] NSWCCA 163
Zaky v R(Cth) [2017] NSWCCA 141

Category: Principal judgment
Parties: Ahmed Taha (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr A Chhabra (Applicant)
Ms E Wilkins SC (Respondent)
Solicitors:
Kadadi & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/303076
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

5 November 2020

Before:

Latham ADCJ

File Number(s):

2019/303076

Judgment

McCALLUM JA: I have had the benefit of reading the judgment of Walton J in draft. I agree…

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 Taha v R

Details

AGLC: Taha v R [2022] NSWCCA 46
Case: [2022] NSWCCA 46
Decision Date: 04 March 2022

CaseChat Overview and Summary

The appellant, Taha, was convicted of various serious criminal offences and appealed against the sentence imposed by the sentencing judge. The primary issue before the court was whether the sentencing judge had erred in considering the applicant's pre-sentence custody, particularly given his borderline intellectual functioning, moral culpability, and understanding of his offending. The court was required to determine if the sentence imposed was appropriate in light of these factors and whether the sentencing judge had properly exercised his discretion.

The court held that the sentencing judge had erred in not sufficiently taking into account the applicant's borderline intellectual functioning and its impact on his moral culpability and understanding of his offending. The court noted that the sentencing judge had relied on findings made at the first instance without adequately considering the applicant's subjective factors, including his mental condition, dietary considerations, hardships, and the conditions in custody, particularly the effects of COVID-19 and a rat infestation. The court quashed the sentence and re-sentenced the applicant, imposing an aggregate term of imprisonment.

The court emphasised the need for the sentencing judge to independently exercise his discretion and consider the objective seriousness of the offending, general deterrence, and special circumstances. The court found that the original sentence did not adequately reflect the applicant's subjective factors and the objective gravity of the offending, and therefore, the sentence was quashed and replaced with a new aggregate term of imprisonment.

Orders