Bazzi v R [2024] NSWCCA 35

Bazzi v R [2024] NSWCCA 35

The appeal was allowed because the sentencing judge erred by allowing the applicant's conditional liberty and prior like offending to affect assessments of objective seriousness. By majority, the Court also held that the s 115 offence involved no additional act of criminality beyond the prior indictable conviction and the s 114 offence, so imposing or indicating a penalty for it would impermissibly risk double punishment; the appropriate disposition for that offence was under s 10A. On resentencing, an aggregate term of 3 years' imprisonment with a non-parole period of 2 years was warranted.

Jurisdiction
Australia
Judgment Date
13 March 2024
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Aggregate Sentence Imposed by the District Court of New South Wales on 2 December 2022 After Pleas of Guilty
Outcome
Leave to appeal granted; appeal allowed; aggregate sentence set aside; applicant resentenced to imprisonment for 3 years commencing 5 July 2022 and expiring 4 July 2025, with a non-parole period of 2 years expiring 4 July 2024.
Legal Topics
['appeal Against Sentence' 'objective Seriousness' 'conditional Liberty' 'prior Offending' 'double Punishment' 'aggregate Sentence' 'crimes Act 1900 (nsw) S 115' 'pearce Principle']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'objective Seriousness' 'conditional Liberty' 'prior Offending' 'double Punishment' 'aggregate Sentence' 'crimes Act 1900 (nsw) S 115' 'pearce Principle']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Aggregate Sentence Imposed by the District Court of New South Wales on 2 December 2022 After Pleas of Guilty

Legal Issues

  1. 1 ['Whether the sentencing judge erred by taking into account, when determining objective seriousness, that the offences were committed while the applicant was subject to conditional liberty.' "Whether the sentencing judge erred by taking into account the applicant's long history of like offending when determining objective seriousness for the s 115 offence." 'Whether the sentencing judge failed to apply the principles in Pearce v The Queen so as to avoid double punishment for elements common to the s 114 offence and the s 115 offence.' 'What sentence should be imposed on resentencing.']

Ratio Decidendi

The appeal was allowed because the sentencing judge erred by allowing the applicant's conditional liberty and prior like offending to affect assessments of objective seriousness. By majority, the Court also held that the s 115 offence involved no additional act of criminality beyond the prior indictable conviction and the s 114 offence, so imposing or indicating a penalty for it would impermissibly risk double punishment; the appropriate disposition for that offence was under s 10A. On resentencing, an aggregate term of 3 years' imprisonment with a non-parole period of 2 years was warranted.

Court Disposition

Leave to appeal granted; appeal allowed; aggregate sentence set aside; applicant resentenced to imprisonment for 3 years commencing 5 July 2022 and expiring 4 July 2025, with a non-parole period of 2 years expiring 4 July 2024.

Orders

  • ['Leave to appeal granted;' 'Appeal allowed;' 'The aggregate sentence of imprisonment imposed on 2 December 2022 set aside;' 'In lieu thereof, the appellant is sentenced to imprisonment for 3 years, commencing on 5 July 2022 and expiring on 4 July 2025, with a non-parole period of 2 years, to expire on 4 July 2024.']