Behjani-Zadeh v R [2018] NSWCCA 97

Behjani-Zadeh v R [2018] NSWCCA 97

There was no sentencing error. Counts 2 and 3 each required proof of an element the other did not, so the abandoned plea-in-bar argument could not succeed. Count 4 involved the same pistol but on a separate occasion, so no double counting arose. The sentencing judge expressly recognised the need to avoid double counting between counts 2 and 3, treated them as effectively concurrent, and separately assessed count 4 and the s 166 certificate matter. The above mid-range assessments were supported by the facts and did not demonstrate duplicity. Without establishing error, the applicant could not show that the aggregate sentence was manifestly excessive.

Jurisdiction
Australia
Judgment Date
23 May 2018
Procedural Posture
Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal From Sentence Imposed by the District Court on 27 March 2017
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['firearms Offences' 'intimidation Causing Fear' 'double Counting in Sentencing' 'aggregate Sentence' 'plea in Bar']
['criminal Law' 'sentencing' 'criminal Procedure'] ['firearms Offences' 'intimidation Causing Fear' 'double Counting in Sentencing' 'aggregate Sentence' 'plea in Bar']

Case Brief

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Procedural Posture

Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal From Sentence Imposed by the District Court on 27 March 2017

Legal Issues

  1. 1 ['Whether the sentencing judge double-counted substantially similar facts or treated elements of one count as aggravating features of another in sentencing counts 2, 3 and 4.' 'Whether the sentencing judge erred in finding counts 2, 3 and 4 to be above the mid-range of objective seriousness.' 'Whether the sentencing judge erred in accepting a plea to count 2.' 'Whether the aggregate sentence was manifestly excessive.']

Ratio Decidendi

There was no sentencing error. Counts 2 and 3 each required proof of an element the other did not, so the abandoned plea-in-bar argument could not succeed. Count 4 involved the same pistol but on a separate occasion, so no double counting arose. The sentencing judge expressly recognised the need to avoid double counting between counts 2 and 3, treated them as effectively concurrent, and separately assessed count 4 and the s 166 certificate matter. The above mid-range assessments were supported by the facts and did not demonstrate duplicity. Without establishing error, the applicant could not show that the aggregate sentence was manifestly excessive.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant the applicant leave to appeal from the sentence imposed on him by the District Court on 27 March 2017.' 'Dismiss the appeal.']