Saraya v R [2021] NSWCCA 139

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Saraya v R [2021] NSWCCA 139 Hearing dates: 21 May 2021 Date of orders: 2 July 2021 Decision date: 02 July 2021 Before: Bathurst CJ at [1]; Beech-Jones J at [2]; N Adams J at [3]. Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIME — Appeals — Appeal against sentence – whether sentencing judge erred in assessment of objective seriousness by "double counting" elements of the offence as aggravating features – offence of aggravated enter dwelling house with intent to commit serious indictable offence – where sentencing judge observed that the offenders were "armed with knives" and the entry was an "effective invasion of a domestic dwelling at night" – held, it was necessary for sentencing judge to have regard to the type of weapon used and the nature of the entry into the dwelling – whether sentence manifestly excessive – where offence was found to be above the mid-range of objective seriousness – lack of favourable subjective case – held, no error Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 68A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 32 Crimes Act 1900 (NSW), ss 4, 33, 59(2), 61, 111(2), 112, 192E Criminal Appeal Act 1912 (NSW), s 5(1)(c) Cases Cited: Dyer v R [2011] NSWCCA 185 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R [2014] NSWCCA 297 Kennedy v R [2013] NSWCCA 19 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mulato v R [2006] NSWCCA 282 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pleace v R [2017] NSWCCA 112 R v Kollas and Mitchell [2002] NSWCCA 491 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Z v R [2015] NSWCCA 274 Category: Principal judgment Parties: Youssaf Saraya (Applicant) Regina (Respondent) Representation: Counsel: Mr E Ozen SC (Applicant) Mr E Balodis (Respondent)