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18
Court of Criminal Appeal 6 March 2008

R v NAJEM

[2008] NSWCCA 32

Assault & violenceFirearms & weaponsPublic order & justice offences

Citation: R v NAJEM [2008] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 6 March 2008
Judge(s): Beazley JA, Hulme J, Latham J

Background

The respondent, Mark Dean Najem, was sentenced in the District Court on three counts arising from a conspiracy to attack the owner of a business called Beautopia in December 2004. The conspiracy involved multiple co-offenders and was directed at causing grievous bodily harm to the business owner. Najem's role on the night of 3 December 2004 was to act as a lookout, armed with a fully loaded 9mm semi-automatic pistol, while another co-offender attempted to shoot a person at the premises (who was in fact an undercover police officer).

Sweeney DCJ sentenced Najem to an effective non-parole period of three years, with an additional term of three years. The Crown appealed on the ground that those sentences were manifestly inadequate given the objective seriousness of the offending.

  • Whether the sentences imposed by the District Court were manifestly inadequate for the conspiracy to cause grievous bodily harm and the firearms offence
  • Whether the sentencing judge erred in identifying appropriate starting points for the sentences
  • Whether the Court of Criminal Appeal should exercise its discretion to increase sentences notwithstanding that co-offenders had not been the subject of Crown appeals, and the disparity that re-sentencing would create

Decision

The Court of Criminal Appeal held that the sentences imposed by Sweeney DCJ were manifestly inadequate. Hulme J (with whom Beazley JA and Latham J agreed) found that her Honour's starting points were too low. The appropriate starting points should have been head sentences of ten years for count 1 (the conspiracy) and seven years for count 2 (the firearms offence). Applying the 20% guilty plea discount that her Honour had already allowed, the correct head sentences would have been approximately eight and five-and-a-half years respectively.

The sentencing judge had characterised Najem's role as being at the lower reaches of the conspiratorial hierarchy. The Court of Criminal Appeal accepted that Najem was not the most culpable participant, but considered the objective seriousness of the conspiracy significantly higher than her Honour had treated it. The respondent was present and armed at the scene while a loaded rifle was discharged at a police officer, and he had received payment for his participation.

The Court acknowledged the difficult position created by the Crown appealing against Najem's sentence but not appealing the sentences of co-offenders Duncan and Sassine. Increasing Najem's sentence would create some disparity with those co-offenders, which the Court recognised as a mark of injustice. Hulme J was critical of the Office of the Director of Public Prosecutions for failing to coordinate its appeal decisions across co-offenders sentenced at the same time. Nevertheless, the Court concluded that the extent of the inadequacy in Najem's sentences was such that intervention was warranted, and it exercised its discretion to impose sentences somewhat below the full extent indicated by its analysis, in recognition of the disparity issue.

Orders Made

  • Crown appeal allowed
  • Sentences imposed by Sweeney DCJ on counts 1 and 2 quashed
  • Count 1: non-parole period of 4 years commencing 7 September 2006, with a further period of 3 years commencing 7 September 2010
  • Count 2: non-parole period of 3 years commencing 7 September 2005, with a further period of 1 year commencing 7 September 2008
  • First date of parole eligibility recorded as 7 September 2010

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court must correctly identify the objective seriousness of the offending before applying any discount for a guilty plea; an error at that foundational stage will produce a manifestly inadequate sentence.
  • Where a conspiracy to cause grievous bodily harm involves an armed participant present at the scene while a weapon is discharged, the offending falls well above the lower range of seriousness, even if that participant's individual role was less than that of the principal attacker.
  • Possession of a prohibited firearm that is loaded and available for use at the scene of a planned violent attack is properly assessed as mid-range seriousness for sentencing purposes, not a minor or technical contravention.
  • In allowing a Crown appeal against sentence, the Court of Criminal Appeal retains a discretion to impose sentences somewhat below those strictly indicated by its analysis, particularly where co-offenders who were not appealed would otherwise face a significant sentencing disparity.
  • The Court expressly criticised the Office of the Director of Public Prosecutions for failing to coordinate Crown appeals across co-offenders sentenced around the same time, noting that selective appeals can produce the very disparity that sentencing law treats as a mark of injustice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (maliciously inflict grievous bodily harm with intent; maximum 25 years)
- Firearms Act 1996 (NSW), s 7 (possession of a prohibited pistol; maximum 14 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A et seq. (standard non-parole period of 3 years for prohibited firearms offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (conditional release bond)

Cases:
- Lowe v R (1984) 154 CLR 606 (disparity in sentences as a mark of injustice)