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District Court 5 August 2026

R v Issa; R v Rohaim

[2026] NSWDC 286

Assault & violenceFraud & dishonestyPublic order & justice offences
SENTENCING SPECIALLY AGGRAVATED KIDNAPPING

Citation: R v Issa; R v Rohaim [2026] NSWDC 286
Court: District Court of New South Wales
Date: 5 August 2026
Judge: Everson SC DCJ

Background

Two offenders were convicted by a jury of a single count of specially aggravated kidnapping under s 86(3) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years' imprisonment. The offence arose from an incident on 15 August 2024 at a Potts Point property, where the victim, an air conditioning contractor, was lured to the premises under the pretence of providing a quote for work.

Once inside, the victim was detained without his consent by both offenders acting in concert, struck once to the side of his face, and compelled to transfer $20,000 from his bank account. The victim subsequently recovered the funds after his bank reversed the transaction. One offender also faced a separate charge of failing to comply with a digital evidence access order, to which he pleaded guilty.

The sentencing hearing required the court to determine the precise factual basis for sentencing, the objective seriousness of the offending, and the appropriate sentences for both offenders.

  • What facts could properly be found for sentencing purposes, consistent with the jury's verdicts and the criminal standard of proof?
  • What was the objective seriousness of the specially aggravated kidnapping?
  • What was the appropriate sentence for each offender, including whether an intensive corrections order was available and appropriate?
  • What was the appropriate sentence for the related offence of failing to comply with a digital evidence access order, and what maximum penalty applied given the charge was transferred from the Local Court?

Decision

Issue 1: Sentencing fact-finding principles

The court applied the established rule that facts adverse to an offender must be proved beyond reasonable doubt, while facts favourable to an offender need only be established on the balance of probabilities: R v Olbrich (1999) 199 CLR 270. The court also confirmed that findings inconsistent with the basis of the jury's verdict, made in a manner favourable to the prosecution, are prohibited: Tarrant v The Queen [2018] NSWCCA 21 at [92]. Some disputed factual matters could not be resolved in a way that affected the sentence in either direction.

Issue 2: Disputed facts and objective seriousness

The court declined to accept the prosecution's highest contentions on the facts for several reasons. Key prosecution witnesses, including on-site construction workers and the account-holder into whose account the money was transferred, were not called to give evidence, leaving adverse facts unproven to the required standard. The absence of the offenders' DNA on the victim's phone or face undermined claims that one offender personally made the bank transfer or delivered multiple punches. The court found that the detention lasted only a few minutes, that the victim himself most likely made the bank transfer, and that actual bodily harm consisted of a single blow rather than multiple punches. The court also found the victim was not an entirely honest or reliable witness, noting he admitted to having lied in his evidence during cross-examination.

Issue 3: The related offence (digital evidence access order)

One offender pleaded guilty to failing to provide the PIN code for a second profile on a Google Pixel phone located at his home during a search warrant. Because the charge was transferred to the District Court under s 166 of the Criminal Procedure Act 1986 (NSW), the court was bound by s 168(3) to exercise the same functions and apply the same restrictions as the Local Court, capping the available maximum penalty at 2 years rather than the 5 years that would apply on indictment.

Issue 4: Appropriate sentences

The court sentenced both offenders to terms of imprisonment to be served by way of intensive corrections orders (ICOs), a community-based alternative to full-time custody. One offender received an aggregate term of 2 years and 3 months (for both offences), with credit given for 11 months of pre-sentence custody and 5 months of assessed quasi-custody, resulting in an ICO running for 1 year and 4 months. The other offender received 2 years, with 3 days' pre-sentence custody acknowledged, and an ICO running until August 2028. Both ICOs carry standard conditions and an additional requirement to participate in a mental health care treatment plan.

Orders Made

  • Both offenders convicted of specially aggravated kidnapping.
  • One offender also convicted of failing to comply with a digital evidence access order.
  • One offender sentenced to an aggregate term of 2 years and 3 months' imprisonment, served by way of an ICO, commencing 5 August 2026 and expiring 4 December 2027 (after crediting 11 months' pre-sentence custody and 5 months' quasi-custody).
  • The other offender sentenced to 2 years' imprisonment, served by way of an ICO, commencing 5 August 2026 and expiring 1 August 2028 (after crediting 3 days' pre-sentence custody).
  • Standard ICO conditions apply to both: no further offending; submission to supervision by a community corrections officer.
  • Additional condition for both: satisfactory participation in a mental health care treatment plan approved by community corrections.
  • One offender to report to Parramatta community corrections by telephone within 7 days of release; the other to report to Fairfield community corrections by telephone within 7 days.
  • Both offenders warned that non-compliance may result in formal warnings, more stringent conditions, or revocation of the ICO and a requirement to serve all or part of the sentence in full-time custody.

Key Takeaways

  • A sentencing court cannot treat disputed facts as established against an offender unless the prosecution proves them beyond reasonable doubt; favourable facts need only be proved on the balance of probabilities. Failing to call material witnesses leaves potentially adverse facts unproven to the required standard.
  • Findings at sentence that are fundamentally inconsistent with, or which undermine, the probable basis of the jury's verdict are prohibited under Tarrant v The Queen, reinforcing the limits on prosecutorial fact-finding submissions at the sentencing stage.
  • Where a charge is transferred to the District Court under s 166 of the Criminal Procedure Act 1986 (NSW), the court is confined to the same maximum penalty as the Local Court under s 168(3), even if the offence ordinarily carries a higher maximum on indictment. For the digital evidence access order offence, this reduced the available maximum from 5 years to 2 years.
  • An intensive corrections order remains an available sentencing option for serious offences, including specially aggravated kidnapping, where the court is satisfied the offenders pose a low risk of reoffending and the circumstances support a community-based disposition.
  • The District Court's careful credibility assessment of the victim's evidence, including admissions of lying during cross-examination, directly affected the factual findings on objective seriousness, illustrating that a complainant's reliability remains a live issue at the sentencing stage even after a guilty verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes ( Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- Director of Public Prosecutions v Aydin & Kirsch [2005] VSCA 86
- R v Newell [2004] NSWCCA 183
- R v Olbrich (1999) 199 CLR 270
- Tarrant v The Queen [2018] NSWCCA 21
- Weininger v The Queen (2003) 212 CLR 629