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Abdelmeseeh v The Queen

Abdelmeseeh v The Queen

Case [2016] NSWCCA 312 16 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Abdelmeseeh v R [2016] NSWCCA 312
Hearing dates: 1 December 2016
Decision date: 16 December 2016
Before: Meagher JA at [1]
Johnson J at [2]
Rothman J at [67]
Decision:
Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW – appeal against sentence –offence of assault occasioning actual bodily harm in company contrary to s 59(2) Crimes Act 1900 – applicant targets victim on public transport – victim attacked in street after leaving a train – victim punched in face and kicked and punched while on ground – serious offence under s.59(2) – applicant on parole at time of offence – whether sentencing judge failed to give effect to finding of special circumstances and/or failed to correctly apply the totality principle – whether sentence imposed was otherwise manifestly excessive – no error demonstrated – leave to appeal against sentence refused
Legislation Cited: Crimes Act 1900
Cases Cited: House v The King [1936] HCA 40; 55 CLR 499
Markarian v The Queen [2005] HCA 25; 228 CLR 357
McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549
Mill v The Queen [1988] HCA 70; 166 CLR 59
Quayle v R [2010] NSWCCA 16
R v JW [2010] NSWCCA 49; 77 NSWLR 7
R v Speechley [2012] NSWCCA 130; 221 A Crim R 175
RR v R [2011] NSWCCA 235; 216 A Crim R 489
Ruttley v R [2010] NSWCCA 118
Shortland v R [2013] NSWCCA 4; 224 A Crim R 486
Sorensen v R [2016] NSWCCA 54
Spark v R [2012] NSWCCA 140
Category: Principal judgment
Parties: Peter Abdelmeseeh (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Corish (Applicant)
Ms S Dowling SC (Respondent)
Solicitors:
Trimmer Criminal Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/46936
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

2 May 2016

Before:

His Honour Acting Judge Hosking SC

File Number(s):

2015/46936

Judgment

MEAGHER JA: I agree with Johnson J that leave to appeal should be refused.
JOHNSON J: The Applicant, Peter Abdelmeseeh, seeks leave to appeal against sentence imposed in the Sydney District Court on 2 May 2016 with respect to an offence of assault occasioning actual bodily harm in company contrary to s.59(2) Crimes Act 1900.
Following a plea of guilty, the Applicant was sentenced to imprisonment comprising a non-parole period of 18 months commencing on 6 September 2015 and expiring on 5 March 2017, with a balance of term of 18 months commencing on 6 March 2017 and expiring on 5 September 2018.
The maximum penalty for an offence under s.59(2) Crimes Act 1900 is imprisonment for seven years. There is no standard non-parole period for this offence.

Facts of Offence

A Statement of Agreed Facts was tendered at the sentencing hearing which revealed the following.
At about 7.02 pm on Tuesday, 25 November 2014, the victim, William Louie (aged 48…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdelmeseeh v The Queen

Details

AGLC: Abdelmeseeh v The Queen [2016] NSWCCA 312
Case: [2016] NSWCCA 312
Decision Date: 16 December 2016

CaseChat Overview and Summary

The case of Abdelmeseeh v The Queen involved the appellant appealing against the sentence imposed following his conviction for an offence of assault occasioning actual bodily harm in company, as defined under section 59(2) of the Crimes Act 1900. The appellant had attacked the victim on public transport, continuing the assault after the victim had disembarked from a train, where he punched the victim in the face and further assaulted him while the victim was on the ground. The appellant was on parole at the time of the offence. The legal issues at the heart of the appeal were whether the sentencing judge had failed to give proper effect to the finding of special circumstances or had not correctly applied the totality principle, and whether the sentence imposed was otherwise manifestly excessive.

In considering these issues, the court examined the sentencing remarks of the primary judge and found no basis to conclude that there had been an error in the application of the totality principle or in the consideration of special circumstances. The court held that the sentence imposed was within the range of appropriate penalties for the offence, taking into account the totality of the circumstances, including the appellant's criminal history and the nature of the offence. The court found no demonstrated error in the sentencing process that would warrant the grant of leave to appeal against the sentence.

As a result, the appeal against sentence was dismissed, and the appellant's conviction and sentence were upheld. The court refused the application for leave to appeal against the sentence, affirming the decision of the primary judge.

Orders