Wraydeh v The Queen - [2020] NSWCCA 309

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wraydeh v R [2020] NSWCCA 309
Hearing dates: 4 September 2020
Decision date: 27 November 2020
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [68]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeals – appeal against sentence – offences of dangerous driving occasioning death and failing to stop and assist – whether overall sentence was manifestly excessive – limited finding about objective gravity for dangerous driving offence – poor subjective case – very adverse criminal record – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 52A, 52AB

Cases Cited:
R v Whyte (2002) 55 NSWLR 252

Category: Principal judgment
Parties: Hassan Wraydeh
Representation:
Counsel:
N Carroll (Applicant)
G Newton (Respondent)
Solicitors:
George Sten & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/203172
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 August 2019

Before:

Latham SC ADCJ

File Number(s):

2018/203172

Judgment

HOEBEN CJ at CL: I agree with Button J and the orders which he proposes.
BUTTON J:

Introduction

On 23 August 2019, Mr Hassan Wraydeh (the applicant) was sentenced for two substantive offences by her Honour Acting Judge Latham SC in the District Court sitting at Sydney. The applicant seeks leave to appeal against the severity of the overall sentence imposed on that day.
The applicant had pleaded guilty to one offence of dangerous driving occasioning death, contrary to s 52A of the Crimes Act 1900 (NSW) (the Act), and failing to stop and assist after a vehicle impact causing death, contrary to s 52AB of the Act. The maximum penalty for each offence is a term of imprisonment of 10 years, and neither offence bears a standard non-parole period.
The applicant was sentenced as follows. In relation to the failure to stop offence, the applicant was sentenced to a fixed term of imprisonment of 2 years 3 months, to commence on 3 December 2018 and to expire on 2 March 2021. As for the fatal driving offence, a head sentence of 5 years 3 months, to commence on 3 September 2020 and to expire on 2 December 2025, with a non-parole period of 3 years 6 months, was imposed. The earliest date upon which the applicant is eligible for release on parole is 2 March 2024.
The effective overall sentence imposed was therefore a head sentence of imprisonment for 7 years, with a non-parole period of 5 years 3 months.
There was partial accumulation of sentence for the fatal driving offence upon the sentence for the failure to stop offence by 1 year 9 months.
A diagram attached to this judgment sets out all of the above aspects of the sentence structure in readily comprehensible form.
The applicant was also disqualified from obtaining a driver’s licence for six years, to date from 11 September 2025.

Objective features

In short, the…

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 Wraydeh v The Queen

Details

AGLC: Wraydeh v The Queen [2020] NSWCCA 309
Case: [2020] NSWCCA 309
Decision Date: 27 November 2020

CaseChat Overview and Summary

The appeal by the applicant, Mr Wraydeh, against his sentence imposed by the Supreme Court of Victoria was heard by the High Court. Mr Wraydeh was convicted of dangerous driving occasioning death and failing to stop and assist, for which he received a sentence of imprisonment. The primary legal issue before the court was whether the sentence was manifestly excessive. The court considered the objective gravity of the dangerous driving offence, the applicant’s poor subjective case, and his very adverse criminal record. The court examined whether the sentence imposed was manifestly excessive in light of the objective seriousness of the offences, the subjective characteristics of the offender, and the cumulative effect of the sentence on the offender’s life.

The court found that the objective gravity of the dangerous driving offence was limited. The applicant’s poor subjective case, coupled with his extensive criminal history, was taken into account. The court emphasised the importance of proportionality in sentencing, considering both the gravity of the offence and the offender’s personal circumstances. The court concluded that the sentence imposed was not manifestly excessive. The court acknowledged the severity of the crimes but found that the sentence was proportionate to the objective seriousness of the offences and the subjective factors of the offender. The appeal was dismissed as the court found no basis to interfere with the sentence imposed by the Supreme Court of Victoria.

Orders