Fajloun & Fajloun v R [2011] NSWCCA 41

Fajloun & Fajloun v R [2011] NSWCCA 41

The original sentences were manifestly excessive in respect of the periods imposed for the most serious offences. Although serious criminality was involved, especially with brutal violence and prolonged kidnapping, more appropriate sentences were determined by recalibrating the non-parole periods in view of special circumstances, subjective features, and proper accumulation. The evaluation of psychiatric evidence was thoroughly undertaken. Both applicants' appeals against sentence were allowed, and new sentences were imposed reflecting adjusted non-parole periods and full terms.

Parties
First Applicant: Raad Fajloun; Second Applicant: Mikel Fajloun; Respondent: The Crown
Jurisdiction
Australia
Judgment Date
14 March 2011
Procedural Posture
Criminal Appeal / Decision on Appeal Against Sentence
Outcome
Appeals allowed; sentences quashed; applicants resentenced.
Legal Topics
Sentencing, Aggravated Breaking and Entering, Aggravated Kidnapping, Assault Occasioning Actual Bodily Harm, Manifestly Excessive Sentence, Degree of Accumulation, Assessment of Objective Seriousness, Mental Condition, Character, Likelihood of Reoffending
Criminal Law Sentencing Aggravated Breaking and Entering Aggravated Kidnapping Assault Occasioning Actual Bodily Harm Manifestly Excessive Sentence Degree of Accumulation Assessment of Objective Seriousness +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 8 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

Raad Fajloun

First Applicant

Mikel Fajloun

Second Applicant

The Crown

Respondent

Procedural Posture

Criminal Appeal / Decision on Appeal Against Sentence

Legal Issues

  1. 1 Whether sentences imposed for aggravated breaking and entering, aggravated kidnapping, and assault occasioning actual bodily harm were manifestly excessive
  2. 2 Whether there was error in the degree of partial accumulation of sentences
  3. 3 Whether the sentencing judge erred in assessment of objective seriousness of the crimes

Ratio Decidendi

The original sentences were manifestly excessive in respect of the periods imposed for the most serious offences. Although serious criminality was involved, especially with brutal violence and prolonged kidnapping, more appropriate sentences were determined by recalibrating the non-parole periods in view of special circumstances, subjective features, and proper accumulation. The evaluation of psychiatric evidence was thoroughly undertaken. Both applicants' appeals against sentence were allowed, and new sentences were imposed reflecting adjusted non-parole periods and full terms.

Court Disposition

Appeals allowed; sentences quashed; applicants resentenced.

Orders

  • In respect of Raad Fajloun: Leave to appeal granted; appeal allowed; District Court sentences of 19 December 2008 quashed; new sentences imposed: (i) count 3, imprisonment with non-parole period of 2 years from 19 November 2007 to 18 November 2009, with a balance of term of 1 year commencing 19 November 2009; (ii)...
  • In respect of Mikel Fajloun: Leave to appeal granted; appeal allowed; District Court sentences of 19 December 2008 quashed; new sentences imposed: (i) count 1, imprisonment with non-parole period of 4 years from 19 December 2008 to 18 December 2012, with a balance of term of 3 years commencing 19 December 2012; (ii)...