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Al Masri v The Queen

Al Masri v The Queen

Case [2020] NSWCCA 1 29 January 2020

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Al Masri v R [2020] NSWCCA 1
Hearing dates: 20 November 2019
Date of orders: 29 January 2020
Decision date: 29 January 2020
Before: Hoeben CJ at CL at [1];
Price J at [3];
Campbell J at [4].
Decision:
(1) Grant leave to appeal;
(2) Appeal dismissed.

Catchwords: CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess —
where sentence comparatively long — appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 112(2); 105A
Judicial Officers Act 1986 (NSW), s 8
Cases Cited: Barbaro v the Queen (2014) 253 CLR 58; [2014] HCA 2
Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538
House v the King (1936) 55 CLR 499; [1936] HCA 40
Knight v R [2015] NSWCCA 222
Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39
Peters v R [2013] NSWCCA 324
R v BB [2005] NSWCCA
R v Coupe [2001] NSWCCA 112
R v Huynh [2005] NSWCCA 220
R v Scott [2001] NSWCCA 377
R v Wood [2014] NSWCCA 184; 244 A Crim R 501
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Amir Al Masri (Applicant)
Regina (Respondent/Crown)
Representation:
Counsel:
K. Averre (Applicant)
E. Balodis (Crown)
Solicitors:
Blair Criminal Lawyers (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2017/269772
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

22 March 2019

Before:

Judge Turnbull SC

File Number(s):

2017/269772

Judgment

HOEBEN CJ at CL: I agree with the orders proposed by Campbell J and generally with His Honour’s reasoning.
I prefer not to express an opinion on the value of statistics. That issue was not fully argued in this case. While I appreciate His Honour’s extensive analysis of the use of statistics I reserve my position on that issue.
PRICE J: I agree with the orders proposed by Campbell J.
CAMPBELL J: The applicant seeks leave to appeal from the sentence passed upon him in the District Court at Parramatta on 22 March 2019 by his Honour Judge Turnbull SC. The applicant pleaded guilty in the Local Court to an offence of aggravated break, enter and commit a serious indictable offence contrary to the provisions of s 112(2) Crimes Act 1900 (NSW). The serious indictable offence was one of the larceny of $350 in cash. The circumstances of aggravation, as prescribed by s 105A Crimes Act, were in this case threefold. First, using corporal violence; secondly, inflicting actual bodily harm on the female occupant of the premises; and thirdly, depriving her of…

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 Masri v The Queen

Details

AGLC: Al Masri v The Queen [2020] NSWCCA 1
Case: [2020] NSWCCA 1
Decision Date: 29 January 2020

CaseChat Overview and Summary

In the case of Al Masri v The Queen, the appellant, Mr Al Masri, sought to appeal against his sentence on the grounds that it was a manifest excess. Mr Al Masri was convicted of a serious crime and sentenced to a lengthy term of imprisonment. The appeal was brought before the High Court of Australia, which was tasked with determining whether the sentence imposed was manifestly excessive, thereby warranting an appeal.

The primary legal issue that the court had to decide was whether the sentence imposed on Mr Al Masri was indeed a manifest excess of the court's sentencing discretion. The court considered the principle that a sentence could be considered manifestly excessive if it is so disproportionate to the crime committed that it shocks the conscience of the court. The court also had to examine whether the trial judge had taken into account all relevant factors and exercised his or her discretion in a manner that was consistent with the principles of sentencing.

In its judgment, the High Court of Australia found that the sentence imposed on Mr Al Masri was not a manifest excess of the trial judge's sentencing discretion. The court held that the sentence was proportionate to the gravity of the offence and that the trial judge had exercised his or her discretion in a manner consistent with the principles of sentencing. The court further found that the sentence did not shock the conscience of the court or demonstrate a failure to take into account relevant factors. Consequently, the appeal was dismissed, and the original sentence was upheld.

In summary, the High Court of Australia dismissed Mr Al Masri's appeal against his sentence, holding that the sentence imposed was not a manifest excess of the trial judge's sentencing discretion. The court found that the sentence was proportionate to the gravity of the offence and that the trial judge had exercised his or her discretion in a manner consistent with the principles of sentencing. The original sentence was therefore upheld.

Orders