Dwayhi v R; Bechara v R [2011] NSWCCA 67

Dwayhi v R; Bechara v R [2011] NSWCCA 67

A legitimate sense of grievance must be objectively established based on marked and unjustifiable disparity between sentences for related offenders. Dwayhi’s disparity claim was rejected due to additional counts, grave breach of trust, and differences in both objective and subjective sentencing circumstances, with no error established. Bechara, however, demonstrated a legitimate sense of grievance from marked disparity between his and Kertebani’s sentences, warranting resentencing to bring his penalties closer to the range imposed on Kertebani, accounting for differences in pleas and subjective cases but correcting the lack of proportion.

Jurisdiction
Australia
Judgment Date
05 April 2011
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Dwayhi: Leave to appeal granted; appeal dismissed. Bechara: Leave to appeal granted; appeal allowed; sentences quashed and resentenced as specified.
Legal Topics
['sentencing' 'parity Principle' 'obtaining Financial Advantage by Deception' 'money Laundering' 'reparation Orders']
['criminal Law'] ['sentencing' 'parity Principle' 'obtaining Financial Advantage by Deception' 'money Laundering' 'reparation Orders']

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Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 ['Whether marked and unjustifiable disparity between sentences of related offenders exists, invoking the parity principle' 'Whether legitimate sense of grievance arises warranting appellate intervention' 'Appropriate non-parole period setting for federal offences']

Ratio Decidendi

A legitimate sense of grievance must be objectively established based on marked and unjustifiable disparity between sentences for related offenders. Dwayhi’s disparity claim was rejected due to additional counts, grave breach of trust, and differences in both objective and subjective sentencing circumstances, with no error established. Bechara, however, demonstrated a legitimate sense of grievance from marked disparity between his and Kertebani’s sentences, warranting resentencing to bring his penalties closer to the range imposed on Kertebani, accounting for differences in pleas and subjective cases but correcting the lack of proportion.

Court Disposition

Dwayhi: Leave to appeal granted; appeal dismissed. Bechara: Leave to appeal granted; appeal allowed; sentences quashed and resentenced as specified.

Orders

  • ['For Fadi Dwayhi: Leave to appeal granted; appeal dismissed.' 'For Badoui Bechara: Leave to appeal granted; sentences imposed in District Court on 21 August 2009 quashed; Bechara sentenced to imprisonment for three years (first count) commencing 21 August 2009 and expiring 20 August 2012; imprisonment for two years...