AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 27 April 2009

Khaled BAJOURI v R

[2009] NSWCCA 125

Assault & violence
CRIMINAL LAW OFFENCES AGAINST THE PERSON APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE OFFENDERS' SENTENCES

Citation: Khaled BAJOURI v R [2009] NSWCCA 125
Court: New South Wales Court of Criminal Appeal
Date: 27 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Howie J

Background

The applicant was one of four co-offenders who, over approximately 24 hours in June 2006, detained a 19-year-old man at a home unit in Rockdale and demanded $100,000 from him, threatening violence if he did not comply. The victim was drugged with anti-psychotic tablets, which caused him to lose consciousness overnight, and was threatened with torture. Police arrested the applicant at the unit the following morning after the victim's father contacted them.

The applicant pleaded guilty in the District Court to a single count of aggravated detention of a person with intent to hold for ransom, under s 86(2)(a) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. Two further offences (demanding money with menaces and administering a stupefying drug) were taken into account on a Form 1. On 11 July 2008, the sentencing judge, Puckeridge DCJ, imposed a total sentence of 6 years, with a non-parole period of 3 years.

The applicant sought leave to appeal, arguing that the sentence was manifestly excessive and, in particular, that it failed to reflect meaningful differences between his role and culpability and those of his co-offenders.

  • Whether the sentence of 6 years imprisonment (3-year non-parole period) was manifestly excessive in the circumstances.
  • Whether the applicant had a justifiable sense of grievance when his sentence was compared with those imposed on his co-offenders, particularly given differences in their respective roles, criminal histories, and circumstances (the parity principle).

Decision

The Court of Criminal Appeal granted leave to appeal and found that the applicant's sentence warranted reduction, primarily on parity grounds. Simpson J (with whom McClellan CJ at CL and Howie J agreed) identified several factors that distinguished the applicant from his co-offenders in a material way that the sentencing judge had not sufficiently recognised.

The applicant was 19 years old at the time of the offence and had been unaware of any plan to demand money until events were already underway. He had no role in planning or preparing the offending. By contrast, at least two co-offenders, Maksoud and Oluklu, committed the offences while they were on parole, a serious aggravating factor not present in the applicant's case. All co-offenders also had more extensive criminal histories than the applicant.

An additional factor was that the applicant was serving his imprisonment in segregation, a circumstance not mentioned by the sentencing judge and apparently not applicable to the other co-offenders. While the objective seriousness of the offending and the co-participation of all offenders did not alone differentiate the applicant, the combination of his youth, his lack of involvement in planning, his lesser criminal history, and the aggravated parole circumstances of two co-offenders meant that his sentence should have been lower. The Court reduced the non-parole period by 6 months, from 3 years to 2 years and 6 months, leaving the balance of term undisturbed.

Orders Made

  • Leave to appeal granted.
  • Sentence imposed in the District Court quashed.
  • In lieu thereof, imprisonment with a non-parole period of 2 years and 6 months, commencing 23 June 2006 and expiring 22 December 2008, and a balance of term of 3 years, expiring 22 December 2011.
  • The applicant is entitled to immediate consideration for release on parole.

Key Takeaways

  • The parity principle requires that co-offenders not be sentenced in a way that gives one a justifiable sense of grievance when compared with others, particularly where meaningful differences in culpability, role, and personal circumstances exist.
  • A co-offender's status on parole at the time of the offence is a significant aggravating factor that can justify a materially higher sentence for that co-offender relative to others who were not on parole.
  • Lack of involvement in planning an offence, relative youth, and a less serious prior criminal history are factors that can, in combination, warrant a reduced sentence even where the offending itself was serious and the offender actively participated.
  • The Court of Criminal Appeal confirmed that harsh prison conditions (such as serving time in segregation) are a relevant sentencing consideration, and a sentencing judge's failure to mention that circumstance may contribute to a finding that insufficient weight was given to the offender's case.
  • In re-sentencing, the Court of Criminal Appeal found it unnecessary to interfere with the balance of term, limiting the reduction to the non-parole period alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a) (aggravated detention of a person with intent to hold for ransom)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances); Pt 3 Div 3 (Form 1 offences)

Cases:
- R v Collett & Robson (NSWCCA, unreported, 7 June 1979, per Roden J)