Fajloun & Fajloun v R [2011] NSWCCA 41

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fajloun & Fajloun v R [2011] NSWCCA 41 Hearing dates: 30 July 2010 Decision date: 14 March 2011 Before: Allsop P at 1, RS Hulme J at 1, McCallum J at 1 Decision: 1. In respect of Raad Fajloun: (a) Leave to appeal be granted. (b) The appeal be allowed. (c) The sentences imposed by the District Court on 19 December 2008 be quashed and in lieu thereof: (i) in respect of count 3, sentence the applicant to imprisonment with a non-parole period of two years commencing on 19 November 2007 and expiring on 18 November 2009 with a balance of term of one year commencing on 19 November 2009; (ii) in respect of count 2, sentence the applicant to imprisonment with a non-parole period of four years commencing on 19 May 2008 and expiring on 18 May 2012 with a balance of term of three years commencing on 19 May 2012; and (iii) in respect of count 1, sentence the applicant to imprisonment with a non-parole period of five years commencing on 19 November 2008 and expiring on 18 November 2013 with a balance of term of three years commencing on 19 November 2013. (iv) The applicant is eligible to be released on parole on 19 November 2013. 2. In respect of Mikel Fajloun: (a) Leave to appeal be granted. (b) The appeal be allowed. (c) The sentences imposed by the District Court on 19 December 2008 be quashed and in lieu thereof: (i) in respect of count 1, sentence the applicant to imprisonment with a non-parole of four years commencing on 19 December 2008 and expiring on 18 December 2012 with a balance of term of three years commencing on 19 December 2012; and (ii) in respect of count 2, sentence the applicant to imprisonment for a fixed term of two years and three months commencing on 15 November 2010 and expiring on 14 February 2013. (iii) The applicant is eligible to be released on parole on 15 February 2013. Catchwords: CRIMINAL LAW - appeal - sentencing - offences of aggravated breaking and entering, aggravated kidnapping and assault occasioning actual bodily harm - whether sentences manifestly excessive - whether error in degree of partial accumulation - whether error in assessment of objective seriousness of crime - whether error in failing to take into account evidence of mental condition - whether insufficient weight given to good character and likelihood of reoffending. Legislation Cited: Crimes Act 1900 (NSW) s 59(1), 86(2), 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A Criminal Appeal Act 1912 (NSW) s 7(1A) Cases Cited: Georgopolous v R [2010] NSWCCA 246 Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498 Sivell v R [2009] NSWCCA 286 R v Terkmani [2009] NSWCCA 142 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Category: Principal judgment Parties: Raad Fajloun (First Applicant) Mikel Fajloun (Second Applicant) The Crown (Respondent) Representation: Counsel: C Nash, D Kang (First Applicant) P Boulten SC (Second Applicant) D Arnott SC, J Pickering (Respondent) Solicitors: Ford Criminal Lawyers (First Applicant) Adam Houda Lawyers (Second Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2006/11973, 2006/13135 Decision under appeal Jurisdiction: 9101 Date of Decision: 2008-12-19 00:00:00 Before: Cogswell DCJ File Number(s): 1197/2008