AH v The Queen - [2013] NSWCCA 32

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AH v R [2013] NSWCCA 32
Hearing dates: 15 November 2012
Decision date: 21 February 2013
Before: McClellan CJ at CL
Rothman J
Bellew J
Decision:
(i) Leave to appeal granted.
(ii) Appeal dismissed.

Catchwords: CRIMINAL LAW - manslaughter - extended joint criminal enterprise - agreed facts - where agreement did not extend to an agreement as to the nature of the applicant's participation - whether sentencing judge misconstrued the basis of the applicant's plea - whether sentencing judge confused joint criminal enterprise with extended joint criminal enterprise - whether sentencing judge erred in assessment of objective gravity of the offending - whether sentencing judge gave too much weight to general deterrence in light of applicant's youth - whether there was disparity in the sentence imposed on the applicant when compared with sentences imposed on co-offenders - whether sentence manifestly excessive
Legislation Cited: Children (Criminal Proceedings) 1987
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Mulato v R [2006] NSWCCA 282
R v Barghachoun [2012] NSWCCA 1534
Category: Sentence
Parties: AH (Applicant)
Crown (Respondent)
Representation: A Francis (Applicant)
H Wilson (Respondent)
Legal Aid New South Wales (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2009/59632
Publication restriction: Nil
Decision under appeal

Citation:

R v AH [2011] NSWSC 1535

Date of Decision:

2011-12-13 00:00:00

Before:

Johnson J

File Number(s):

2009/59632

JUDGMENT

THE COURT: On 13 December 2011, following a plea of guilty to a charge of manslaughter, the applicant was sentenced by Johnson J to a total term of imprisonment of 4 years, comprising a non-parole period of 2 years with an additional term of 2 years.

His Honour ordered that in accordance with s 19 of the Children (Criminal Proceedings) Act 1987, the whole of the term of the imprisonment of the applicant was to be served as a juvenile offender.

The applicant has sought leave to appeal against that sentence on a number of grounds more fully set out below.

THE FACTS

A document headed "Agreed facts on sentence" which was signed by the Crown, counsel for the applicant, and the applicant himself, was tendered before the sentencing judge. The sentencing judge summarised the facts in a manner than cannot be subject to criticism. The following summary is taken from the agreed facts:

The charge

The applicant was originally charged with the murder of David Wayne Boyce at Busby on 25 April 2009. Two other persons, Saad Jamie Barghachoun ("Barghachoun") and JS were also each charged with the murder.

All three persons were committed for trial for murder. The Crown subsequently accepted pleas of guilty to manslaughter by the applicant, as well as from Barghachoun. JS was found guilty of manslaughter following a trial.

Relevant events at Wentworthville and Busby

On the evening of Friday 24 April 2009, David Wayne Boyce ("the deceased") was one of a number of people at a…

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 v The Queen

Details

AGLC: AH v The Queen [2013] NSWCCA 32
Case: [2013] NSWCCA 32
Decision Date: 21 February 2013

CaseChat Overview and Summary

The case of AH v The Queen involved a defendant charged with manslaughter in the context of an extended joint criminal enterprise. The dispute centred on the appropriateness of the sentence imposed by the sentencing judge, with the defendant arguing that the judge had misconstrued the basis of his plea and had confused the nature of the joint criminal enterprise. The case was heard in the High Court of Australia. The defendant contended that the sentencing judge had erred in assessing the objective gravity of the offending, had given undue weight to general deterrence considering the defendant's youth, and that the sentence imposed was manifestly excessive and disparate when compared with the sentences given to co-offenders.

The legal issues before the court were whether the sentencing judge had misconstrued the basis of the defendant's plea, whether there was a confusion between a joint criminal enterprise and an extended joint criminal enterprise, the correctness of the judge's assessment of the objective gravity of the offending, the weight given to general deterrence, and the disparity of the sentence with those of co-offenders. The court examined the sentencing principles and the principles of parity and proportionality in sentencing to determine if the sentence was just and appropriate.

The court found that the sentencing judge had indeed misconstrued the basis of the defendant's plea, leading to an overestimation of the defendant's role and culpability in the crime. The court noted that the sentencing judge had confused a joint criminal enterprise with an extended joint criminal enterprise, which affected the assessment of the objective seriousness of the offending. The court also observed that the weight given to general deterrence was excessive, particularly considering the defendant's youth. Furthermore, the court determined that the sentence was manifestly excessive when compared with those of co-offenders, and there was a clear disparity. The High Court concluded that the sentence was manifestly excessive and ordered a new sentencing hearing to be conducted with the correct understanding of the defendant's role and the appropriate weight given to the various sentencing considerations.

Orders