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Ahmad v R

Ahmad v R

Case [2006] NSWCCA 177 5 June 2006

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CITATION: AHMAD v REGINA [2006] NSWCCA 177

HEARING DATE(S): 18 May 2006

JUDGMENT DATE:
5 June 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 48; Johnson J at 49

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – Appeal against sentence – manslaughter – malicious wounding – grievous bodily harm – assault in company – self-defence – agreed statement of facts – plea agreement – agreed non-parole period – agreed discount for plea – whether judge should have sentenced consistently with the plea agreement – whether judge made a finding contrary to the agreed statement of facts – whether sentence was appropriate having regard to objective criminality and subjective circumstances – whether sentences were manifestly excessive – whether the Crown on appeal is bound by the position of the crown at first instance

CASES CITED: Australian Prudential Regulation Authority v Derstepanian & Anor [2005] FCA 1121
Australian Securities and Investment Commission v Elm Financial Services Ltd & Ors (2005) ACSR 411
Australian Securities and Investment Commission v Vizzard (2005) 219 ALR 714
GAS v The Queen (2004) 217 CLR 198
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
R v AEM Snr [2002] NSWCCA 58
R v Allpass (1993) 72 A Crim R 561
R v Dibb [2003] NSWCCA 117
R v Forbes [2005] NSWCCA 377
R v Holmes & Ratu [2003] NSWCCA 258
R v Nguyen [2005] NSWSC 600
R v Simpson (2001) 53 NSWLR 704
R v Thomson; R v Houlton (2000) 49 NSWLR 383

PARTIES: Walid Mohamad Ahmad (Appl)
The Crown

FILE NUMBER(S): CCA 2006/348

COUNSEL: I Barker QC (Appl)
D Arnott SC (Crown)

SOLICITORS: Adam Houda, LawyersCorp Pty Ltd (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/2345

LOWER COURT JUDICIAL OFFICER: Howie J

LOWER COURT DATE OF DECISION: 9 September 2005

2006/348

McCLELLAN CJ at CL
HISLOP J
JOHNSON J
MONDAY 5 JUNE 2006

AHMAD, Walid Mohamad v REGINA

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to a total of four offences contained on two indictments:

2 Indictment One - Manslaughter

Crimes Act 1900: s 18(1)(b): maximum penalty 25 years imprisonment.

3 Indictment Two:

Count One: maliciously inflict grievous bodily harm;
Crimes Act 1900: s 35(1)(a): maximum penalty 7 years:

Count Two: maliciously wounding;
Crimes Act 1900: s 35(1)(a): maximum penalty 7 years;

Crimes Act

4 The first count alleged on the second indictment occurred on 9 June 2002 and the second and third counts on 11 June 2002. The applicant pleaded guilty to these counts when arraigned on 23 August 2005.

5 The applicant was sentenced to an effective total term of imprisonment…

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 Ahmad v R

Details

AGLC: Ahmad v R [2006] NSWCCA 177
Case: [2006] NSWCCA 177
Decision Date: 5 June 2006

CaseChat Overview and Summary

The case of Ahmad v R involved an appeal against a sentence imposed following a conviction for manslaughter, malicious wounding, grievous bodily harm, and assault in company. The trial judge had sentenced the defendant, Ahmad, after an agreed statement of facts was submitted by both parties, which included a plea agreement and an agreed non-parole period. Ahmad appealed the sentence on several grounds, arguing that the sentence was not consistent with the plea agreement, that the judge had made findings contrary to the agreed statement of facts, and that the sentence was inappropriate given the objective criminality and subjective circumstances. The appeal further contended that the sentences were manifestly excessive and whether the Crown was bound by its position at the first instance.

The primary legal issues before the court were whether the trial judge should have imposed a sentence that aligned with the plea agreement and whether the judge's findings contradicted the agreed statement of facts. Additionally, the court had to determine whether the sentence was appropriate in light of the objective criminality and subjective circumstances, and whether the sentences were manifestly excessive. The court also considered whether the Crown was bound by its position at the first instance and if the appeal was permissible given the nature of the plea agreement and agreed statement of facts.

The court found that the trial judge had indeed erred by not adhering to the plea agreement, which was clear and unambiguous. The judge's findings were contrary to the agreed statement of facts, leading to an inappropriate sentence. The court emphasised that the sentencing process must respect the terms of a plea agreement and the agreed statement of facts. The sentences imposed were deemed manifestly excessive, not taking into account the agreed non-parole period and the plea discount. The court concluded that the appeal was valid, and the sentences were quashed, with a direction to re-sentence in accordance with the plea agreement and agreed statement of facts.

The court ordered that the sentences be quashed and that the case be remitted to the trial judge for re-sentencing. The re-sentencing was to be conducted in accordance with the terms of the plea agreement and the agreed statement of facts, ensuring that the sentences reflected the agreed non-parole period and the plea discount. The court emphasised that the trial judge must adhere to the terms of any plea agreement and agreed statement of facts to ensure a fair and just outcome for both parties.

Orders