Bazzi v R [2024] NSWCCA 35

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bazzi v R [2024] NSWCCA 35 Hearing dates: 1 December 2023 Decision date: 13 March 2024 Before: Simpson AJA at [1] Button J at [75] Weinstein J at [131] Decision: 1. Leave to appeal granted; 2. Appeal allowed; 3. The aggregate sentence of imprisonment imposed on 2 December 2022 set aside; 4. In lieu thereof, the appellant is sentenced to imprisonment for 3 years, commencing on 5 July 2022 and expiring on 4 July 2025, with a non-parole period of 2 years, to expire on 4 July 2024. Catchwords: CRIME – appeals – appeal against sentence – where applicant had committed a large number of property offences – larceny, obtain property by deception, break and enter, reckless damage – whether error in sentencing judge's determination of objective seriousness – consideration of the applicant's status as subject to conditional liberty at the time of the offending in determining objective seriousness – consideration of the applicant lengthy criminal history in determining objective seriousness of offence pursuant to s 115 Crimes Act 1900 – objective features of the offending and subjective features of the offender must be considered separately – appeal upheld – applicant resentenced CRIME – appeals – appeal against sentence – whether error in sentencing separately for common elements in ss 114 and 115 offences – no additional act of criminality necessary for guilt under s 115 – offence complete on proof of previous conviction and applicant's commission of the s 114 offence – double punishment –contravention of Pearce v the Queen – discussion of background to statutory provision – consideration of approach in Darcy v R and R v Tillott – s 115 inconsistent with prevailing sentencing standards – unanimous criticism of s 115 – inappropriate to impose any penalty – inappropriate to indicate any sentence as part of an aggregate term of imprisonment – appeal upheld on this ground by majority Legislation Cited: Crimes Act 1900 (NSW) ss 113, 112, 114, 115, 117, 192, 195 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 10A, 21A(2)(d), 53A Criminal Law Amendment Act of 1883 (NSW) (46 Vic No 17) s 110 Criminal Procedure Act 1986 (NSW) s 166 Drug Court Act 1998 (NSW) s 6 Drug Court Regulation 2020 (NSW) cl 6 Cases Cited: Darcy v R [2022] NSWCCA 54 DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 Elhassan v R [2018] NSWCCA 118 Hillier v DPP (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 McGuiness v R [2021] NSWCCA 80 McNaughton v R (2006) 66 NSWLR 566; [2006] NSWCCA 242 Paterson v R [2021] NSWCCA 273 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Tillott (1991) 53 A Crim R 46 Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247 Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Rania Bazzi (Applicant) Rex (Respondent) Representation: Counsel: B Neild SC (Applicant) E Wilkins SC (Respondent)