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Ah-Keni v R

Ah-Keni v R

Case [2020] NSWCCA 122 11 June 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ah-Keni v R [2020] NSWCCA 122
Hearing dates: 29 May 2020
Decision date: 11 June 2020
Before: Hoeben CJ at CL at [1];
Harrison J at [77];
Wilson J at [79]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW– sentence appeal – offences of use an authorised pistol and fire a firearm in or near a public place – whether objective seriousness of offences properly assessed – whether sentence manifestly excessive – loaded pistol pointed at taxi driver as a “prank” – pistol discharged – objective seriousness correctly assessed at above midrange – sentence not manifestly excessive – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 93G(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(5AA)
Evidence Act 1995 (NSW) – s 136
Firearms Act 1996 (NSW) – ss 3, 7(1)
Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Miller v R [2015] NSWCCA 86
Mulato v Regina [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pham v R [2014] NSWCCA 115
R v DO [2005] NSWCCA 183
R v GWM [2012] NSWCCA 240
Vandeventer v R [2013] NSWCCA 33
Category: Principal judgment
Parties: Raymond Ah-Keni – Applicant
Regina – Respondent Crown
Representation:
Counsel:
G James QC/J Jiang – Applicant
G Newton – Respondent Crown
Solicitors:
Abbas Jacobs Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2018/229300
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 237

Date of Decision:

17 April 2019

Before:

Colefax SC DCJ

File Number(s):

2018/229300

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal from the sentences imposed on him by his Honour Judge Colefax SC (the sentencing judge) sitting in the Parramatta District Court on 17 April 2019.

The applicant pleaded guilty in the Local Court to two offences involving the use and discharge of an unauthorised pistol in a taxi early on the morning of 22 July 2018.

Sequence 3 – Use an unauthorised pistol (Firearms Act 1996 (NSW) s 7(1), maximum penalty 14 years imprisonment, standard non-parole period 4 years);

Sequence 4 - Fire a firearm in or near a public place (Crimes Act 1900 (NSW) s 93G(1)(b), maximum penalty 10 years imprisonment).

The applicant was on bail on other charges at the time of committing these offences. He was sentenced separately in the Local Court in respect of those other charges and the present sentences were backdated to commence at the end of the non-parole periods imposed by the Local Court.
For the use unauthorised pistol offence (sequence 3), the applicant was sentenced by his Honour to a non-parole…

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 Ah-Keni v R

Details

AGLC: Ah-Keni v The Queen [2020] NSWCCA 122
Case: [2020] NSWCCA 122
Decision Date: 11 June 2020

CaseChat Overview and Summary

In the case of Ah-Keni v R, the appellant challenged the severity of his sentence imposed for offences involving the use of an unauthorised pistol and firing a firearm in or near a public place. The matter was heard by the Court of Appeal. The appellant had pointed a loaded pistol at a taxi driver in what he described as a "prank", resulting in the firearm discharging. The primary legal issues the court needed to address were whether the objective seriousness of the offences had been accurately assessed and whether the sentence imposed was manifestly excessive.

The court examined the circumstances surrounding the incident, noting that the appellant had pointed a loaded firearm at another person, resulting in it discharging. It was highlighted that the appellant's actions, though termed a "prank", demonstrated a significant disregard for public safety and the potential for causing serious harm. The court found that the trial judge had appropriately assessed the objective seriousness of the offences, placing it above the midrange. Additionally, the court determined that the sentence imposed was not manifestly excessive, taking into account the nature of the offences and the need to deter similar conduct. The appeal was therefore dismissed, affirming the original sentence.

Orders