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Alenezi v The King

Alenezi v The King

Case [2023] NSWCCA 283 13 November 2023

Criminal Liability

Aggravated & Exemplary Damages

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alenezi v R [2023] NSWCCA 283
Hearing dates: 6 October 2023
Date of orders: 13 November 2023
Decision date: 13 November 2023
Before: Adamson JA at [1];
Basten AJA at [2];
Sweeney J at [59]
Decision:
(1)   Grant leave to the applicant to rely upon the notice of appeal filed on 31 July 2023.
(2)   Grant the applicant leave to appeal against the sentence imposed on him in the District Court on 8 October 2021.
(3)   Dismiss the appeal.

Catchwords:
CRIME – appeal against sentence – one count of sexual intercourse without consent – above mid-range of objective seriousness – offender reckless as to consent – whether recklessness can support a finding of above the mid-range – whether sentencing judge failed to make findings in relation to mitigating factors – whether sentencing judge erred in refusal to rely on untested out-of-court statements – whether sentence manifestly excessive
CRIME – procedure – leave to appeal – out of time – explanation for delay required – obligation of solicitor to make inquiries

Legislation Cited:
Crimes Act 1900 (NSW), s 61I
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D, 44
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5

Cases Cited:
Ali v R [2010] NSWCCA 35
Ali v R [2014] NSWCCA 45
BM v R [2023] NSWCCA 68
Housev The King (1936) 55 CLR 499; [1936] HCA 40
Imbornone v R [2017] NSWCCA 144
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nand v R [2014] NSWCCA 293
Naveed v R [2019] NSWCCA 149
R v Ferguson [2022] NSWCCA 147
R v MAK 167 A Crim R 159; [2006] NSWCCA 381;
Rahman v R [2020] NSWCCA 13
Rajendran v R [2014] NSWCCA 113
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Sayer Hamoud Alenezi (Applicant)
Rex (Respondent)
Representation:
Counsel:
D S Roff / S Rumbewas (Applicant)
T Abdulhak (Respondent)
Solicitors:
Abbas & Co Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/344283
Publication restriction: Non-publication order as to identity of victim
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 718

Date of Decision:

8 October 2021

Before:

Bennett SC DCJ

File Number(s):

2019/00344283

HEADNOTE

[This headnote is not to be read as part of the judgment]

Sayer Hamoud Alenezi (the applicant) sought leave to appeal his sentence in relation to a single count of sexual assault. The offence, under s 61I of the Crimes Act 1900 (NSW), was committed on 27 October 2019 at Woolloomooloo in Sydney. The applicant had penile-vaginal intercourse with a 22-year-old woman without her consent and was reckless as to her lack of consent. He entered an early plea to the charge. A further offence of penile/oral intercourse was taken into…

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 Alenezi v The King

Details

AGLC: Alenezi v The King [2023] NSWCCA 283
Case: [2023] NSWCCA 283
Decision Date: 13 November 2023

CaseChat Overview and Summary

The case of Alenezi v The King involved the appellant who was convicted of one count of sexual intercourse without consent. The appellant appealed against the sentence imposed, arguing that the sentencing judge had failed to make findings in relation to mitigating factors, erred in refusing to rely on untested out-of-court statements, and that the sentence was manifestly excessive. Additionally, the appellant sought leave to appeal out of time, without providing an explanation for the delay. The central issues were whether the sentencing judge could properly consider the appellant's recklessness as to consent when determining the objective seriousness of the offence, and whether the absence of an explanation for the delay in applying for leave to appeal was a valid reason to deny the application.

The court considered the nature of recklessness in relation to consent and whether it could appropriately support a finding of the offence being above the mid-range of objective seriousness. The court noted that while recklessness is a less culpable state of mind than intention, it can still warrant a higher sentence where the harm caused is significant. The court also examined the sentencing judge's failure to explicitly address mitigating factors, and whether this omission constituted a significant error. Furthermore, the court assessed the sentencing judge's refusal to consider untested out-of-court statements and whether this decision was justified under the circumstances. Lastly, the court evaluated the overall severity of the sentence in light of the appellant's criminal history and the nature of the offence.

The court found that the sentencing judge did not err in considering the appellant's recklessness as to consent when determining the seriousness of the offence. The court held that recklessness could indeed support a finding of the offence being above the mid-range. Additionally, the court concluded that the sentencing judge's failure to explicitly address mitigating factors did not constitute a significant error, as the overall sentence reflected a comprehensive consideration of all relevant factors. Regarding the untested out-of-court statements, the court found no error in the sentencing judge's refusal to consider them, given the lack of substantiation. Finally, the court determined that the sentence was not manifestly excessive, taking into account the appellant's criminal history and the need for general deterrence.

The court denied the appellant's application for leave to appeal out of time, due to the lack of an adequate explanation for the delay. The court emphasised the importance of solicitors making timely inquiries and the obligation to explain any delays in seeking leave to appeal. The appeal against sentence was dismissed.

Orders