HEJAZI v THE QUEEN [2009] NSWCCA 282

New South Wales Court of Criminal Appeal

CITATION: HEJAZI v THE QUEEN [2009] NSWCCA 282

HEARING DATE(S): 13 November 2009

JUDGMENT DATE: 13 November 2009

JUDGMENT OF: Basten JA at 1, 40; Howie J at 34; Hislop J at 39

EX TEMPORE JUDGMENT DATE: 13 November 2009

(1) Grant the applicant leave to appeal in respect of each of the sentences imposed by Ashford DCJ in the District Court at Parramatta on 1 December 2008. DECISION: (2) In relation to the second sentence, direct that the applicant be released on parole at the expiration of the non-parole period. (3) Otherwise dismiss the appeal.

CATCHWORDS: CRIMINAL LAW – sentencing – offences of breaking and entering with intent to steal – whether circumstances of crime aggravated by commission for financial gain – whether element of offence – level of moral culpability – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(o) - CRIMINAL LAW – sentencing – finding of special circumstances – whether balance of term appropriate proportion of non-parole period with respect to specific sentence – whether proportion appropriate with respect to aggregation of sentences – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 - CRIMINAL LAW – sentencing – whether necessary to take into account fact that crimes could have been prosecuted in Local Court – whether sentence manifestly excessive - WORDS & PHRASES – "circumstances of aggravation"

Crimes Act 1900 (NSW), s 112 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 50 Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 [5]

CATEGORY: Principal judgment

Cicciarello v R [2009] NSWCCA 272 Elyard v Regina [2006] NSWCCA 43 CASES CITED : R v Simpson (1992) 61 A Crim R 58 Re Attorney-General's Application [No 1]; R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 Regina v El Masri [2005] NSWCCA 167