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Ul-Hassan v R

Ul-Hassan v R

Case [2018] NSWCCA 177 17 August 2018

Sentencing

Aggravated Dangerous Driving

Moral Culpability

Mitigating Factors

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ul-Hassan v R [2018] NSWCCA 177
Hearing dates: 20 April 2018
Date of orders: 17 August 2018
Decision date: 17 August 2018
Before: Fullerton J at [1]
Davies J at [2]
Lonergan J at [124]
Decision:
(1) Leave to appeal granted.

(2) The appeal is allowed.

(3) Quash the sentence imposed by Judge McLennan SC in the District Court on 15 December 2016.
(4) In lieu, sentence the appellant to an aggregate sentence of five years imprisonment commencing 15 December 2016 and expiring 14 December 2021 with a non-parole period of two years and six months expiring 14 June 2019.
Catchwords: SENTENCING – appeal against sentence – aggravated dangerous driving occasioning grievous bodily harm – mitigating factors – no record of previous convictions – Crimes (Sentencing Procedure) Act s 21A(3)(e) – whether sentencing judge erred by failing to advert to the applicant’s record – whether sentencing judge erred in finding that the applicant’s conduct amounted to an “abandonment of responsibility” – moral culpability not mitigated by identification of absent aggravating factors – whether applicant suffered extra-curial punishment as a result of injuries sustained by applicant and his friends who were passengers in the vehicle – applicant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW) s 52A
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)
Cases Cited: Bravo v R [2015] NSWCCA 302
GW v R [2018] NSWCCA 79
Mills v R [2017] NSWCCA 87
Mulato v R [2006] NSWCCA 282
Pereira v R [2018] NSWCCA 171
Priovolidis v R [2016] NSWCCA 201
R v Baker [2000] NSWCCA 85
R v Howcher [2004] NSWCCA 179
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
R v Wright [2013] NSWCCA 82
Vaiusu v R [2017] NSWCCA 71
Vale v R [2016] NSWCCA 154
Zreika v R (2012) 223 A Crim R 460 [2012] NSWCCA 44
Texts Cited: Nil
Category: Principal judgment
Parties: Waqar Ul-Hassan (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Alexis & A Cheema (Applicant)
R Ranken (Respondent)
Solicitors:
W Aman (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/219667
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

15 December 2016

Before:

McLennan DCJ

File Number(s):

2015/219667

Judgment

FULLERTON J: I agree with Davies J.
DAVIES J: The applicant pleaded guilty to three counts of aggravated dangerous driving occasioning grievous bodily harm. The maximum penalty for this offence is 11 years imprisonment together with periods of disqualification from driving.
He was also charged with driving with a mid-range of prescribed concentration of alcohol. The maximum penalty for this offence is 20 penalty units and/or imprisonment for nine months. There are also periods of disqualification from driving. That offence was placed on a s 166 certificate.
On 15 December 2016 he was sentenced by Judge McLennan SC to an aggregate sentence of six years imprisonment commencing 15 December 2016 and expiring 14 December 2022…

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 Ul-Hassan v R

Details

AGLC: Ul-Hassan v The Queen [2018] NSWCCA 177
Case: [2018] NSWCCA 177
Decision Date: 17 August 2018

CaseChat Overview and Summary

The appellant, Ul-Hassan, appealed against the sentence imposed by the Supreme Court of New South Wales for aggravated dangerous driving occasioning grievous bodily harm. The sentencing judge had found that the appellant’s conduct amounted to an abandonment of responsibility and sentenced him to a term of imprisonment with a non-parole period. The appeal focused on whether the sentencing judge erred in failing to consider the appellant’s previous unblemished record and whether the sentencing judge had correctly identified the appellant’s conduct as an abandonment of responsibility. The appellant argued that the judge’s failure to consider his record and the absence of aggravating factors resulted in an unduly severe sentence.

The court was required to determine if the sentencing judge erred in failing to consider the appellant's unblemished record and whether the conduct was accurately classified as an abandonment of responsibility. The court also needed to assess whether the moral culpability of the appellant was properly evaluated and if the absence of aggravating factors warranted a lesser sentence. Additionally, the court examined whether the appellant had suffered extra-curial punishment due to the injuries sustained in the accident, which may have influenced the severity of the sentence.

The court found that the sentencing judge did not err in failing to advert to the appellant's record, as the absence of previous convictions did not mitigate the moral culpability of the offence. The court upheld the classification of the appellant's conduct as an abandonment of responsibility, noting the dangerous nature of the driving and the resulting grievous bodily harm. The court concluded that the sentencing judge correctly assessed the moral culpability and the absence of aggravating factors did not warrant a lesser sentence. The court re-sentenced the appellant, reducing the term of imprisonment and the non-parole period, taking into account the appellant’s unblemished record and the overall circumstances of the case.

The Supreme Court of New South Wales, in its appellate jurisdiction, re-sentenced the appellant to a term of imprisonment with a reduced non-parole period, reflecting the mitigating factors identified during the appeal process. This decision underscores the importance of accurately assessing moral culpability and considering all relevant mitigating factors in sentencing for aggravated dangerous driving.

Orders