Legal Context

In the case of RE v R [2005] NSWCCA 429, the applicant, RE, appealed against the sentences imposed on him for three criminal offences committed on the night of 6-7 October 2003. These offences involved breaking, entering, and stealing from a warehouse, detaining a security guard with the intention of obtaining an advantage, and robbing the security guard. This case raised significant issues regarding the appropriate level of leniency given for an offender’s assistance to authorities and the impact of guilty pleas on sentencing.

RE was convicted of three serious criminal offences. The first was an aggravated offence under section 112(2) of the Crimes Act, involving breaking, entering, and stealing in the company of others. The second offence was under section 86(3) of the Crimes Act, involving specially aggravated kidnapping, as it was committed in company and resulted in actual bodily harm to the victim.

The third offence was robbery under section 97(1) of the Crimes Act. The sentencing judge, Judge Solomon, imposed a non-parole period of two years and nine months for the first offence and two-year fixed terms for each of the other offences, all to run concurrently. RE appealed, arguing that these sentences were excessive and that insufficient allowance had been made for his cooperation and guilty pleas.

Suspension and Appeal for Stay

The Court of Criminal Appeal granted RE leave to appeal against his sentences. The main grounds of appeal were that the sentencing judge had not given sufficient allowance for RE’s assistance to authorities and his guilty pleas and that the sentences were manifestly excessive. RE’s appeal focused on whether the discounts for his guilty pleas and assistance were adequate and whether the overall sentences reflected the seriousness of the criminal offences appropriately.

The appeal court, comprising Chief Justice McClellan, Justice Studdert, and Justice James, reviewed the sentencing process and the factors considered by Judge Solomon. The appellate court acknowledged the complexity of balancing leniency for cooperation with the need to impose a sentence that reflects the gravity of the criminal offences. The court also emphasised that sentencing must ensure that the punishment is not disproportionately lenient compared to the nature and circumstances of the offence, as required by section 23(3) of the Crimes (Sentencing Procedure) Act 1999.

Assessment of Crime

The criminal offences committed by RE were serious. On the night of 6-7 October 2003, RE, along with Ali Abdul Karim and Belal Hammed, broke into a warehouse in Alexandria, stealing computer equipment and perfume. The security guard, Jadran, was part of the plan and pretended to be a victim. Another security guard, Caldwell, who was unaware of the scheme, observed unusual activity at the warehouse and approached the scene. 

Hammed threatened Caldwell and took his mobile phones, detaining and assaulting him. Caldwell was made to lie face down, his hands and feet tied, and was hit, causing a laceration to his forehead.

RE did not directly participate in the detention, assault, or robbery of Caldwell. Instead, he was in another part of the premises, pretending to guard Jadran. The stolen goods were loaded into a truck, and the offenders left the premises in two vehicles. Police chased and apprehended RE, who made no attempt to flee.

Judge Solomon’s sentencing considered RE’s limited role in planning the first offence and his absence during Caldwell’s assault. However, RE was held liable for all criminal offences under the principle of joint criminal enterprise.

Considerations on Public Safety and Trust

In his sentencing remarks, Judge Solomon noted RE’s difficult background, including his experience as a victim of the Lebanese civil war and his resulting post-traumatic stress disorder (PTSD). RE’s PTSD contributed to his drug addiction and subsequent criminal behaviour. Despite these mitigating factors, the judge stressed the need to reflect the seriousness of the offences and protect public safety.

Judge Solomon acknowledged RE’s significant cooperation with authorities. RE provided detailed statements and undertook to give evidence against his co-offenders, which greatly assisted the prosecution. The judge recognised the utilitarian value of RE’s guilty pleas and his substantial assistance in identifying and prosecuting the co-offenders. These factors warranted a substantial discount in sentencing, aligning with the line of authority that supports significant leniency for offenders who assist the police.

Appellate Decision

Justice James, with the concurrence of Justices McClellan and Studdert, found that Judge Solomon may have started from an excessive notional starting point of eleven years for the first offence. The appellate court determined that a combined discount of not less than 50% for RE’s early plea of guilty and assistance was appropriate. The court concluded that the sentence for the first offence should be reduced to four and a half years, with a non-parole period of two years and three months.

The appellate court considered that the discount was necessary to ensure that the sentence was not unreasonably disproportionate to the nature and circumstances of the criminal offences. The court confirmed the sentences for the other two criminal offences, emphasising that the combined discount reflected the applicant’s significant assistance and cooperation with the authorities.


The appeal in RE v R [2005] NSWCCA 429 resulted in a reduction of the sentence for the first offence of aggravated breaking, entering, and stealing. The court highlighted the importance of balancing leniency for cooperation with the need to reflect the seriousness of the criminal offences. The decision underscores the judiciary’s commitment to ensuring that sentences are fair and proportionate while recognising the value of assistance provided by offenders.

Seeking Legal and Professional Guidance

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Our firm is dedicated to achieving the best possible outcomes for our clients, whether dealing with issues of sentencing, assistance to authorities, or complex legal arguments. We provide strategic guidance and robust defence to ensure that your rights are protected throughout the legal process.

Contact Daniel Wakim Law Firm for a consultation and let us assist you in navigating the legal system with confidence. Our expertise in handling criminal offences and our commitment to client success make us the right choice for your legal needs.