Al Ghazzawi v The Queen - [2018] NSWCCA 204

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Al Ghazzawi v R [2018] NSWCCA 204
Hearing dates: 14 September 2018
Date of orders: 14 September 2018
Decision date: 14 September 2018
Before: Macfarlan JA at [1]
Bellew at J [2]
Wilson J at [36]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.
(3) Order that the applicant be returned to custody forthwith to complete his sentence.
(4) Order that the applicant be eligible for parole on 13 March 2019.
(5) Order that the sentence will expire on 13 December 2019.

Catchwords: CRIMINAL LAW – Sentence – Appeal – Assault with an act of indecency – Where applicant entered the victim’s premises uninvited and commenced to masturbate in front of her when she was asleep – Where applicant then tried to grab the victim and kiss her – Where victim repeatedly demanded that the applicant leave – Where offending occurred shortly after an earlier visit to the premises by the applicant – Degree of premeditation – Serious offending – Sentence of 1 year and 9 months imprisonment comprising a non-parole period of 12 months with a balance of term of 9 months imprisonment not manifestly excessive – Appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Baines v R [2016] NSWCCA 132
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
R v Nikolovska [2010] NSWCCA 169; 209 A Crim R 218
RLS v R [2012] NSWCCA 236
Category: Principal judgment
Parties: Issam Sheyaa Al Ghazzawi – Applicant
Regina – Respondent
Representation:
Counsel:
A Norrie – Applicant
B Baker – Respondent
Solicitors:
Ross Hill & Associates – Applicant
C Hyland, Solicitor for Public Prosecutions – Respondent

File Number(s): 2011/00035209
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 June 2017

Before:

Bennett SC DCJ

Judgment – EX TEMPORE (REVISED)

MACFARLAN JA: I agree with Bellew J.
BELLEW J: On 14 February 2017 an indictment was presented against Issam Sheyaa Al Ghazzawi (“the applicant”) alleging two offences. The first (count 1) was that on 19 January 2011, at Telopea in the State of New South Wales, he broke into and entered the dwelling house of a person to whom I shall refer as the victim, and committed a serious indictable offence therein, namely he indecently assaulted the victim in circumstances of aggravation, namely that he knew that there was a person in the premises. The second count (count 2) alleged that on the same date, at the same place, the applicant assaulted the victim, and at the time of the assault committed an act of indecency upon her.
The applicant entered a plea of guilty to count 2 (which was charged as an alternative to count 1) and the Crown accepted that plea in full satisfaction of the indictment. The offending in count 2 was contrary to s 61L of the Crimes Act 1900 (NSW), the…

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 Al Ghazzawi v The Queen

Details

AGLC: Al Ghazzawi v The Queen [2018] NSWCCA 204
Case: [2018] NSWCCA 204
Decision Date: 14 September 2018

CaseChat Overview and Summary

The case of Al Ghazzawi v The Queen involves the appellant, who was convicted of assault with an act of indecency. The appellant entered the victim's premises uninvited and engaged in a lewd act while the victim was asleep, and subsequently attempted to grab and kiss her despite her repeated demands for him to leave. The offending occurred shortly after an earlier visit by the appellant to the same premises. The appeal centred on the severity and premeditation of the offence, as well as the appropriateness of the sentence imposed. The appellant argued that the sentence of 1 year and 9 months imprisonment, with a non-parole period of 12 months, was excessively harsh.

The court had to determine the appropriate degree of premeditation and seriousness of the offence, as well as whether the sentence was manifestly excessive. It was noted that the appellant had a prior history of similar offending and had shown a pattern of behaviour that demonstrated a disregard for the victim's rights and autonomy. The court considered the gravity of the act, the level of intrusion, and the impact on the victim. The court found that the degree of premeditation was significant, given the appellant's prior visit to the premises and his actions that evening. The court concluded that the seriousness of the offence warranted a substantial sentence to adequately reflect the community's denunciation of such behaviour and to provide deterrence.

The appeal was dismissed by the court. The court found that the sentence imposed was not manifestly excessive and was proportionate to the seriousness of the offence. The court acknowledged the appellant's prior history but emphasised the need for a sentence that reflects the gravity of the current offence and its impact on the victim. The court's decision was based on a careful consideration of the facts, the degree of premeditation, and the principles of sentencing in cases of serious offending. The final orders of the court confirmed the original sentence imposed on the appellant.

Orders