R v Jadallah - [2018] NZHC 1211

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-006112

[2018] NZHC 1211

THE QUEEN

v

IBRAHIM FAWZI ALI JADALLAH

Appearances: H D L Steele for Crown A M A Ives for Prisoner

Date:

28 May 2018

SENTENCING NOTES OF COURTNEY J

R v JADALLAH [2018] NZHC 1211 [28 May 2018]

Introduction

[1] Ibrahim Jadallah, you appear for sentence today having been found guilty on one charge of aggravated robbery.1 The maximum penalty for that charge is 14 years’ imprisonment.

Circumstances of the offending

[2] I begin by recording the circumstances of the offending. The verdict at your trial, which included other charges, meant that the jury accepted that you and an associate went to Mr Hifo’s house intending to rob him of his car using your combined force, whether through actual violence or threats of violence. The verdict does not tell us whether the jury accepted that you were armed or whether your associate assaulted Mr Hifo, as the Crown alleged at trial. As the trial Judge, I sentence on the basis of my view of the evidence in relation to those matters.2
[3] On my view of the evidence the circumstances of the offending on the aggravated robbery charge were as follows. You and Vave Hifo were previously known to one another. There was evidence of previous acrimony, probably as a result of his former relationship with the woman who was then your partner and the fact that he was still in contact with her. Mr Hifo said that a few weeks before the offending you came to your girlfriend’s flat when he was visiting. There was an altercation. You had a revolver with you that night. I accept Mr Hifo’s description of that evening.

[4] On 18 April 2017, you arrived at Mr Hifo’s home with two associates. This meeting had been arranged by an associate of Mr Hifo, ostensibly to clear the air between you. I find that this was a pretext and that you came armed with a revolver and with the intention of exacting retribution. My view about this is based on Mr Hifo’s evidence, which I accepted on the point of you being armed. The other charge against you was that you shot Mr Hifo and you were acquitted of that and I proceed on this sentencing on the basis that there was no shooting in that room that night.

1 Crimes Act 1961, s 235(b). The jury acquitted Mr Jadallah on charge one of wounding with intent to cause grievous bodily harm and another charge of aggravated robbery.
2 Sentencing Act 2002, s 24(1), B (CA58/2016) v R [2016] NZCA 432 at [74]–[76].

[5] However, I do accept Mr Hifo’s evidence that you were armed. And to support that evidence is the fact that I accept his description of the previous occasion on which you were armed and, in addition, several weeks after this event you were stopped by the police with an…

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 R v Jadallah

Details

AGLC: R v Jadallah [2018] NZHC 1211
Case: [2018] NZHC 1211
Decision Date: 28 May 2018

CaseChat Overview and Summary

The case of R v Jadallah involved Ibrahim Jadallah, who was sentenced for the charge of aggravated robbery. The maximum penalty for this charge was 14 years' imprisonment. Jadallah and his associate had gone to the house of Mr. Hifo with the intention of robbing him using force, either actual violence or threats of violence. The circumstances of the offence were that Jadallah and Mr. Hifo were previously known to each other and there was evidence of previous acrimony. Jadallah arrived at Mr. Hifo's house armed with a revolver and with the intention of exacting retribution. Jadallah threatened Mr. Hifo with his gun, and his associate punched him. At Jadallah's direction, his associate took Mr. Hifo's Honda CRV and drove the car away.

The court had to determine the appropriate sentence for Jadallah. The court took into account the premeditation of the offence, the use of a weapon, the actual violence inflicted, and the loss of the vehicle. The court also considered previous cases and the submissions of both parties. The court decided that a starting point of seven years was appropriate, but reduced it by six months to reflect the fact that Jadallah had been previously convicted of an Arms Act offence. The court did not impose an uplift to reflect Jadallah's previous criminal history, but acknowledged that it was a poor criminal history. The final sentence imposed on Jadallah was six-and-a-half years' imprisonment.

The court made no further warning to Jadallah as he had already received a first strike warning upon conviction. The court emphasised that Jadallah's behaviour was dreadful, particularly as he had a child, and that he needed to do something about his behaviour while serving his term of imprisonment.

Orders