Jibran v R [2020] NSWCCA 86

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jibran v R [2020] NSWCCA 86 Hearing dates: 26 February 2020 Date of orders: 01 May 2020 Decision date: 01 May 2020 Before: Leeming JA at [1] Johnson J at [2] Harrison J at [214] Decision: 1. Grant the Applicant leave to appeal against sentence. 2. The aggregate sentence imposed at the Parramatta District Court on 6 February 2019 is quashed. 3. The Applicant is sentenced to an aggregate term of imprisonment for three years and 10 months comprising a non-parole period of two years and 10 months commencing on 2 July 2018 and expiring on 1 May 2021 with a balance of term of one year commencing on 2 May 2021 and expiring on 1 May 2022. 4. The earliest date upon which the Applicant will be eligible for release on parole is 2 May 2021. Catchwords: APPEAL – sentence – offences of aggravated kidnapping (causing actual bodily harm), driving whilst disqualified and damaging property – applicant forcibly detained victim in his car after she made a "000" call during an argument – applicant threw victim's phone out of the car window and broke it – fearful victim leaped from moving car – offence of driving whilst disqualified the next day – whether sentencing Judge erred in not providing reasons as to objective seriousness of each offence – where sentencing Judge delivered ex tempore remarks on sentence – error not established – whether sentencing Judge erred, by taking into account an irrelevant consideration, in finding applicant to not be genuinely remorseful – where applicant's history of intimate partner violence was an overlapping issue – error not established – whether sentencing Judge erred by failing to take into account a relevant consideration in deciding whether to find special circumstances – where sentencing Judge commenced aggregate sentence on incorrect date – error established – whether sentencing Judge erred in failing to afford the Applicant procedural fairness in whether to find special circumstances – error not established – whether sentencing Judge erred in finding that the driving whilst disqualified offence occurred on the night of the applicant's other offences – error established – consideration of objective gravity of aggravated kidnapping offence – consideration of factors relevant to sentence for driving whilst disqualified – objective gravity of offence and history of driving whilst disqualified – applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986 Road Transport Act 2013 Cases Cited: Allen v R [2010] NSWCCA 47 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Bott v R [2012] NSWCCA 191 Caristo v R [2011] NSWCCA 7 DJ v R [2017] NSWCCA 319 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 GP v R [2017] NSWCCA 200 Hei Hei v R [2009] NSWCCA 87 Heine v R [2008] NSWCCA 61 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kilic v The Queen (2016) 259 CLR 256; [2016] HCA 48 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Majzoub v R [2019] NSWCCA 94 McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 Mulato v R [2006] NSWCCA 282 Newman (A Pseudonym) v R [2019] NSWCCA 157 Ng v R (2011) 214 A Crim R 191; [2011] NSWCCA 227 PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 Police v Te Pairi [2008] NSWLC 17 R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 R v Ball [2013] NSWCCA 126 R v Burton [2008] NSWCCA 128 R v Greaves [2014] NSWCCA 194 R v Jibran [2019] NSWDC 317 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Newell [2004] NSWCCA 183 R v Price [2016] NSWCCA 50 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 R v Veatufunga [2007] NSWCCA 54 Simpson v R [2019] NSWCCA 137 Toole v R (2014) 247 A Crim R 272; [2014] NSWCCA 318 Yassine v R [2008] NSWCCA 139 Texts Cited: --- Category: Principal judgment Parties: Mohammed Jibran (Applicant) Regina (Respondent) Representation: Counsel: Mr S Howell (Applicant) Ms C Curtis (Respondent)