Alesbhi v R; Esbhi v R

[2018] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Alesbhi v R; Esbhi v R [2018] NSWCCA 30

Hearing dates:

30 January 2018

Decision date:

09 March 2018

Before:

Simpson JA at [1];
R A Hulme J at [2];
Hidden AJ at [106]

Decision:

1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. Quash the sentences imposed in the District Court on 11 May 2017 and in lieu, sentence each offender to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years 6 months. The sentences are to date from 9 March 2017. The non-parole periods will expire on 8 September 2019 at which time the offenders will become eligible for release on parole.

Catchwords:

CRIME – appeal against sentence – severity – affray – fail to appear – applicants convicted of affray relating to bashing of two victims by group of ten men – applicants were told by interpreter that they would be facing a 10 year custodial sentence – after trial but before sentence was handed down both applicants fled to the Middle East for six months – both offences assessed by trial judge to be above the mid-range offence – each applicant sentenced to six years imprisonment – whether error in finding both offences were above mid-range – where Court of Criminal Appeal would impose fresh sentence – unnecessary to consider ground.

 

CRIME – appeal against sentence – severity – affray – whether judge erred by finding planning as an aggravating factor – where applicant was with ten other men who were armed at time of the melee –judge would have been in error if applying Crimes (Sentencing Procedure) Act s 21A(2)(n) – judge entitled to take into account limited planning under Crimes (Sentencing Procedure) Act 21A(1)(c) – ground rejected.

 

CRIME – appeal against sentence – affray – judge took into account offence aggravated by presence of children – s 21A(2)(ea) of Crimes (Sentencing Procedure) Act – no evidence children were present

 

CRIME – appeal against sentence – procedure for District Court to deal with offence of failing to appear under Bail Act 2013 – how proceedings are to be instituted – ground of appeal withdrawn – doubts about whether certificate under s 166 of Criminal Procedure Act 1986 appropriate

 

CRIME – appeal against sentence– fail to appear – flight from Australia but voluntary return – where trial judge not asked to take voluntary return into account but doubtful judge did not have regard to it – relevant matter to take into account in resentence

CRIME – appeal against sentence – fail to appear – whether judge erred by not having regard to limitations of Local Court jurisdiction imposed by s 168(3) Criminal Procedure Act and s 58 Crimes Act – whether District Court entitled to accumulate sentence beyond 5 year maximum of Local Court – Crimes Act s 58 does not apply – no sentence imposed for fail to appear offence – notional partial accumulation but aggregate sentence imposed.

Legislation Cited:

Bail Act 2013 (NSW) ss 79(1), 80
Crimes Act 1900 (NSW) s 93C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2), 44(2B), 53A(2)(b), 58(1), 58(3A)
Criminal Appeal Act 1912 (NSW) s 5(1)(c)
Criminal Procedure Act 1986 (NSW) ss 165(1), 166, 168(3), Ch 3 Pt 3 Div 7, Ch 4 Pt 4

Cases Cited:

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khanwaiz, Shajeel v R; Khanvez, Noman v R; Khanwaiz, Zeeshan v R [2012] NSWCCA 168
McLaughlin v R [2013] NSWCCA 152
Moore v R [2016] NSWCCA 185
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Price [2016] NSWCCA 50; 75 MVR 89
R v Seymour [2012] NSWSC 1010
Samuel v R [2017] NSWCCA 239

Category:

Principal judgment

Parties:

Adnan Alesbhi (Applicant)
Bader Esbhi (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr G James QC with Mr Lang (Alesbhi)
Mr H Dhanji SC (Esbhi)
Ms T Smith (Crown)

  Solicitors:
Lawyers Corp Pty Ltd (Alesbhi)
Warren F Ball & Co (Esbhi)
Solicitor for Public Prosecutions

File Number(s):

2013/91225; 2013/89631

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

11 May 2017

Before:

Colefax SC DCJ

File Number(s):

2013/91225; 2017/89762
2013/89631; 2017/89763

Judgment

1. SIMPSON JA: I agree with the orders proposed by R A Hulme J for the reasons he gives.

2. R A HULME J: Adnan Alesbhi and Bader Esbhi were each sentenced by his Honour Judge Colefax SC in the District Court at Parramatta on 11 May 2017 to aggregate terms of imprisonment in respect of which they both seek leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

3. Mr Alesbhi was sentenced to imprisonment for 6 years with a non-parole period of 4 years 6 months and Mr Esbhi was sentenced to imprisonment for 6 years with a non-parole period of 3 years 7 months. Each sentence was specified to commence on 9 March 2017.

4. The sentences were imposed in respect of offences of affray (contrary to s 93C(1) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years) and fail to appear (contrary to s 79(1) of the Bail Act 2013 (NSW) for which the maximum penalty that applied in the circumstances pursuant to s 79(4) is imprisonment for 3 years and/or a fine of $3,300).

5. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the learned judge indicated that if he was not imposing an aggregate sentence he would have imposed sentences of 5 years 5 months for the affray offence and of 13 months for the fail to appear offence.

6. The failure of the applicants to appear on bail occurred after the completion of evidence and submissions on sentence for the affray offence on Friday 16 September 2016 when the learned judge announced that he would impose sentence the following Monday. The applicants fled the country on the Sunday and did not return until 9 March 2017. Following submissions on the Friday the judge described it as "an act of specific indulgence for these men that they are not going into custody this afternoon; they have the weekend to organise their affairs, because they will be going into full-time custody on Monday and they should know that and be prepared for it".

The offences

Affray

7. Mr Chris Brown, aged 47 years, lived with his family including his son, Mr Corey Brown, aged 25 years, in a home at Granville. In the early afternoon of 24 March 2013 the family pet dog escaped from the back yard and went across the road. Chris Brown went after it and called out, "Get back you mongrel dog". By chance, Mr Alesbhi was driving by and he mistakenly believed that the comment had been directed at him. There was an argument between him and Chris Brown following which Mr Alesbhi drove away. Mr Brown went inside and told his family what had occurred.

8. A short time later, those inside the house could hear yelling and screaming coming from the front of the house. Chris and Corey Brown went to the front of their home and saw around 10 men of Middle Eastern appearance (including the applicants). The judge refrained from finding that Mr Alesbhi was the organiser of the group but noted that they could not have known of the location of the Browns' premises without his assistance.

9. The group of men were variously armed with baseball bats, pieces of timber fence palings, a metal pole, a knife, a Taser-like device and other items. There was no evidence as to what, if anything, Mr Alesbhi was armed with. The judge referred to Mr Esbhi carrying a plastic bucket (although the agreed facts mentioned that he used such an item offensively). The judge accepted that there was no evidence that the applicants were aware of the knife or the Taser-like device, but they must have been aware of the larger items. The judge rejected a submission that the subsequent outbreak of violence was not planned.

10. The agreed facts included (but the judge did not mention) that a car parked in the driveway belonging to Chris Brown's wife was damaged by some of the males who were armed with weapons. Photographs showed that the front and rear windows of the car had been smashed by some object(s) multiple times and there was also some panel damage.

11. At one point, Mr Esbhi struck Chris Brown with the bucket and a short time later a number of the men struck him when he was on the ground. At one point, Corey Brown punched Mr Esbhi in an act of defending his father. The group threw a number of projectiles, mostly bricks, at both Chris and Corey Brown.

12. The group then forced their way through the side gate of the premises, striking Corey Brown with sticks and pieces of wood as they did so. The altercation continued into the front yard. Corey Brown became involved in a struggle with one of the men (not identified) who was holding the Taser-like device and he saw a blue flashing light and heard a noise emanating from it. Another (unidentified) man approached Corey Brown and swung a baseball bat towards him while saying, "I'm going to kill you". Corey Brown used his left arm to defend himself. Another (unidentified) man struck Corey Brown to the left arm and the right collarbone with a baseball bat. He then felt a punch to his back and heard the cracking noise of the Taser-like device.

13. Corey Brown then noticed that his father was on his back with three or four of the group standing over him. Chris Brown was trying to defend himself by raising his arms to protect his head and face. Corey Brown was then struck again by a baseball bat, this time to the upper left arm. He punched that assailant to the face in order to defend himself.

14. The man with the Taser-like device approached Corey Brown again and jabbed him in the back with it. Corey Brown punched that man to the face and he fell to the ground. Mr Brown managed to get up, with difficulty, and went to the aid of his father who was still being assaulted. One member of the group which was assaulting Chris Brown was armed with a pole. Corey Brown managed to punch each of the applicants to the face several times.

15. An unidentified member of the group then produced a kitchen knife which was about 15 cm long. He lunged at Corey Brown and threatened to kill him and his family. Corey Brown stepped back and punched that man to the face. At around this time, one of the group (unidentified) called out, "That's enough, that's enough". However, some of the members of the group continued to throw bricks at the Browns' premises.

16. The judge noted that the statement of agreed facts included:

"It is agreed that the two offenders were present with the middle-eastern males throughout this incident, they attended [the victims' home] with the middle-eastern males in the context of the neighbourhood dispute. They were present in the front yard of [the home] while some of the middle-eastern males were using bats, a pole and fence palings in the course of the affray … It is agreed that the two offenders physically struck Chris Brown and Corey Brown during the course of the melee."

17. His Honour also noted:

"There is, however, no agreement as to the means by which these two offenders struck these two victims. There is agreement that these two offenders did not withdraw from the affray but rather were present from the beginning to the end."

18. Police and ambulance officers arrived soon after the group left the victims' premises. Chris Brown and Corey Brown were both taken to Westmead Hospital.

19. Chris Brown sustained the following injuries:

●   Scalp bruising and a laceration, 2 cm and deep, closed with 3 sutures.

●   Sternum graze.

●   Shoulder swelling.

●   Left forearm bruising x 2.

●   Right biceps swelling.

●   Right forearm bruising.

●   Thoracic region graze.

20. Corey Brown sustained the following injuries:

●   Right clavicle swelling, bruising and graze.

●   Left forearm bruise.

●   Left triceps graze.

●   Left scapula graze (from the Taser-like device).

21. Both men were discharged from hospital later on the night of their admission.

22. The judge noted that there was no evidence of any long-term physical injury. Although no victim impact statements were provided he accepted that "the experience would have been a frightening, if not terrifying, one for both of them".

23. The two applicants were also taken to hospital where they were treated for a number of injuries. Mr Alesbhi sustained pain to the side of his face and jaw as well as to the sternum, neck and thoracic spine. He also had abrasions to the chest and face and a small laceration above an eyelid. Mr Esbhi sustained abrasions to the left eyelid and forehead, redness to an eye, pain in the back, neck, chest, abdomen and lower left limb and a 3 cm wound to the chin.

24. The judge assessed the affray as being "above a mid-range offence". It was held to be aggravated by the fact that it occurred in the home of the victims and by "the presence of other children". There was also "some limited planning".

Fail to appear

25. The applicants left the country on Sunday 18 September 2016 and flew to Indonesia. From there they flew to the Middle East where they remained until they returned to Australia on 9 March 2017.

26. There was evidence that following the conclusion of the sentencing hearing on Friday 16 September 2016 the applicants had conferences with their counsel with the assistance of an Arabic interpreter. The judge accepted that they had misunderstood what they had been told, thinking that a reference to the maximum penalty for the offence of affray of 10 years' imprisonment was what the judge said he intended to impose. His Honour also said that it was more likely than not that at an early stage of the proceedings the applicants had received legal advice (which he described as "less than helpful") that a period of imprisonment was unlikely. He considered this may, in part, explain their reaction following the sentence hearing on 16 September 2016.

27. The judge assessed the objective seriousness of the fail to appear as "above a mid-range offence".

Mr Alesbhi's background and personal circumstances

28. Mr Alesbhi was born in 1958 in Iraq. He was brought up in a poor rural setting but his childhood was otherwise unremarkable. He left school at Year 10. He married his first wife at age 19 but they divorced when he was 25. He married his second wife in 1985.

29. He served in the Iraqi army when aged about 20 during the war with Iran. One of his brothers was killed during that war. Mr Alesbhi was later imprisoned for about 6 months after he declined to re-enlist in the army during tensions between Iraq and Kuwait.

30. Mr Alesbhi, his second wife and their two children fled to Jordan in 1998 where they established a clothing business. He came to Australia in 1999 but had never worked in this country. His daughter died in Jordan and his wife and son came to Australia in 2003.

31. The judge noted that it was reported that Mr Alesbhi suffered from psychological disabilities as a result of his time in the Iraqi army and the death of his daughter, although his Honour did not find the evidence of this to be persuasive. He was not satisfied that Mr Alesbhi had established on the balance of probabilities that he was suffering any significant psychological condition. His Honour appears to have accepted indirect reports that Mr Alesbhi suffered from hypertension, diabetes, gout and glaucoma, but noted that they did not prevent his participation in the affray. There was no evidence that adequate treatment would not be available in custody.

32. His Honour accepted that Mr Alesbhi was entitled to the leniency extended to first offenders on account of his lack of prior convictions in this country.

33. No remorse was expressed in Mr Alesbhi's oral evidence given on 16 September 2016 and the judge noted that the various reports indicated he had persistently sought to minimise his involvement in the affray.

34. Notwithstanding the absence of remorse, the judge accepted that Mr Alesbhi had reasonable prospects of rehabilitation on account of his age and lack of prior offending. However, his Honour declined to find that there were special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act warranting a shorter non-parole period.

Mr Esbhi's background and personal circumstances

35. Mr Esbhi was born in 1982 in Kuwait. His family were stateless and lived in a war torn country. They had no income and survived on charity. He left school at the age of 14 but could not obtain work because he was not a Kuwaiti citizen. He came to Australia with is parents and siblings in 2001. Although he attended TAFE for 18 months he had never been in paid employment. He had no prior convictions in this country.

36. The judge noted that Mr Esbhi had received a carer's pension for the past seven years as his wife suffered from a number of conditions including schizophrenia. They had four children who at the time of sentence were aged between 4 and 11 years.

37. Mr Esbhi suffers from a number of physical health issues: asthma, diabetes, hypertension, lower back pain and spinal dysfunction. As with Mr Alesbhi, the judge noted that these conditions did not prevent him from participating in the vigorous physical activity of the affray. There was no evidence these conditions could not be adequately treated in custody.

38. Mr Esbhi also claimed to suffer from mental health issues but the judge was not satisfied that there was acceptable evidence that established this was the case. His Honour also did not accept a claim of remorse in a handwritten letter to the court and noted that no sworn evidence had been given.

39. Mr Esbhi's prospects of rehabilitation were regarded as "reasonable", notwithstanding the lack of remorse, on account of his age and lack of prior offending.

40. Special circumstances warranting a reduction of the non-parole component of the sentence were found on the basis of Mr Esbhi's wife's significant mental and physical conditions.

Generally as to the assessment of sentence

41. In relation to Mr Alesbhi, and it would seem in relation to Mr Esbhi as well, the judge found that "the principles of specific deterrence might not be fully engaged" but that "those of general deterrence certainly are". He said, "Those [who] engage in these acts of unprovoked violent lawlessness must understand that they will be dealt with severely".

42. The sentences imposed for the affray offence were reduced by 10 per cent on account of "late" pleas of guilty but the sentences for the failure to appear offence were reduced by 25 per cent because of pleas entered at the first available opportunity.

Grounds of appeal

43. A Notice of Application for Leave to Appeal was filed on 22 September 2017 by Mr Alesbhi notifying the following proposed grounds of appeal with further grounds being added in the light of the written submissions later filed by the Crown:

1. His Honour erred in purporting to sentence the applicant in conformity with s 166 Criminal Procedure Act 1986, notwithstanding the fact that the offence of failing to appear was not properly before the District Court.

2. Alternatively, in determining the aggregate sentence, his Honour failed to have regard to the limitation imposed by s 168(3) Criminal Procedure Act 1986 and s 58 Crimes (Sentencing Procedure) Act 1999.

2A. Alternatively, when fixing the aggregate sentence, his Honour erred in failing to take into account the policy behind s 58(1) Crimes (Sentencing Procedure) Act 1999, and s 168(3) Criminal Procedure Act.

3.   His Honour erred in finding that the affray offence was aggravated by the “presence of other children”.

4.   The sentence imposed was manifestly excessive.

4A.   His Honour erred in finding that the objective seriousness of the affray offence fell above the mid-range.

4B.   His Honour erred in finding that the objective seriousness of the offence of failing to appear fell above the mid-range.

44. A Notice of Appeal (sic) was filed by Mr Esbhi on 24 October 2017 notifying the following proposed grounds with two additional grounds added by the filing of Amended Grounds of Appeal the day before the hearing:

Ground 1:   The learned sentencing judge erred in finding planning as an aggravating factor.

Ground 2:   The learned sentencing judge erred in finding that the offence occurred in the presence of children.

Ground 3:   The learned sentencing judge erred in failing to take into account the applicant’s voluntary return to Australia when sentencing the applicant in relation to the offence of failing to appear.

Ground 4:   The sentence was manifestly excessive.

Ground 5: The learned sentencing judge erred in purporting to sentence the applicant in conformity with s 166 Criminal Procedure Act 1986, notwithstanding the fact that the offence of failing to appear was not properly before the District Court.

Ground 6: In the alternative to Ground 5, the learned sentencing judge erred in determining the aggregate in failing to have regard to the limitation imposed by s 168(3) of the Criminal Procedure Act 1986 and s 58 of the Crimes (Sentencing Procedure) Act 1999.

45. Following the hearing of the applications, Mr Alesbhi withdrew his Ground 1 and Mr Esbhi withdrew his Ground 5.

Alesbhi Ground 3; Esbhi Ground 2 – error in finding affray aggravated by the presence of children

46. It is appropriate to deal with these grounds first as they have merit.

47. The agreed facts included that children were inside the home of the victims. It may be assumed this was intended to convey that they were in the home at the time of the initial incident and throughout the subsequent affray. Nothing was said about how many children there were; their ages; or whereabouts in the home they were. Significantly, nothing was said about whether any of them saw or heard the affray, or any part of it.

48. In recounting the facts, the judge referred to the presence of children inside the home but said, "their ages are not disclosed in the material before me".

49. At the conclusion of his summary of the facts constituting the affray, the judge said:

"The offence of affray in these circumstances is aggravated by the fact that the offence occurred in the home of the victims; the presence of other children; and some, but limited planning."

50. It was submitted that in the above passage the judge was referring to aggravating factors listed in s 21A(2) of the Crimes (Sentencing Procedure) Act including that in paragraph (ea):

"(2)The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: …

(ea) the offence was committed in the presence of a child under 18 years of age."

51. It was submitted that it was erroneous for the judge to take into account the presence of children during the affray as an aggravating circumstance. There was no evidence that any of the children said to have been in the house saw or heard what was happening out the front.

52. In written submissions, the Crown contended that an inference could be drawn from a number of features of the affray (e.g. yelling, screaming, bricks being thrown and a car being damaged) that children inside the house would have been aware of what was going on. However, at the hearing of the applications, counsel for the Crown (with her usual and commendable candour) referred to relevant authorities and acknowledged the difficulty in this aggravating factor being made out to the necessary standard of beyond reasonable doubt.

Consideration

53. Mere presence of a child appears from the terms of s 21A(2)(ea) to be sufficient to make out this aggravating factor. However, in Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 at [104], Howie AJ said that the provision was "principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional wellbeing of a child" or on the child's "moral values". His Honour also said:

"whether it is aggravating in a particular case, and how aggravating it is, will depend upon the nature of the offence and the likelihood that the child will be affected by it, having regard to all the circumstances including the child's age".

54. In R v Seymour [2012] NSWSC 1010 a two-year old child was present during a crime of violence but was asleep and the sentencing judge (Price J) rejected a Crown submission that the aggravating factor in s 21A(2)(ea) was made out. In McLaughlin v R [2013] NSWCCA 152, there was doubt about whether a child was present during two domestic assaults and no evidence that the child actually witnessed a third such assault. Button J (Latham J and Barr AJ agreeing) found error in the primary judge having taken the "generalised presence" of the child into account as an aggravating factor.

55. In the present case, children were said to be "inside the home" but the affray was committed outside and nothing was said about whether any of them had any awareness of what was going on. For all the agreed facts disclosed, it was possible that children were in the rear of the house out of sight and hearing; or they could have been very young children who were asleep. It is little wonder that no-one raised with the judge the possible application of s 21A(2)(ea).

56. In short, there was no basis for the learned sentencing judge to conclude beyond reasonable doubt that the affray was committed "in the presence of a child under 18 years of age". This ground should be upheld.

57. The consequence is that this Court must re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. This makes it unnecessary to discuss the other grounds of appeal in any more than a summary fashion.

Esbhi Ground 1 – error in finding planning as an aggravating factor

58. This ground is concerned with the judge's finding that the affray "is aggravated by … some, but limited planning". It is clear that the judge was talking about the affray in a general sense and not about the role of any particular participant. Submissions that focussed on the latter were a distraction.

59. Counsel for Mr Esbhi contended (and the Crown accepted) that the judge's finding was based upon the aggravating factor in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act:

"(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: …

(n) the offence was part of a planned or organised criminal activity."

60. If the judge was purporting to apply s 21A(2)(n) he would have been in error in the same fashion as the sentencing judge in Moore v R [2016] NSWCCA 185. That is not the end of the matter because the ground should be rejected for the same reason as it was in that case.

61. Moore v R concerned a sentence imposed for murder. Basten JA (with the agreement of Adamson J and myself) first explained why there was error in applying s 21A(2)(n) where the facts simply established that there was an agreement between the offender and his mother to go and "sort the deceased out" and in doing so, they probably intended to inflict physical injury upon him. His Honour said (at [74]):

"This Court has noted on a number of occasions that the ordinary meaning of par (n) is not satisfied by some degree of planning, but requires a more extensive criminal undertaking. Paragraph (n) does not say that ‘the offence was planned’, but rather that the offence was ‘part of a … criminal activity’, the criminal activity being that which was planned or organised."

62. However, Basten JA had regard to s 21A(1)(c) which, in addition to the requirement to take into account aggravating and mitigating factors listed in s 21A(2) and (3), requires a sentencing court to have regard to "any other objective or subjective factor that affects the relative seriousness of the offence". Explaining why the primary judge was not in error in taking the matters described above into account, Basten JA said (at [75]):

"However, as also appears from [RL v R [2015] NSWCCA 106 at [37]], planning may nevertheless constitute a factor affecting the relative seriousness of the offence, for the purposes of s 21A(1)(c). Whether an offence is ‘planned’ will involve matters of degree; the comparison is between a level of premeditation of criminal conduct and a response which is spontaneous, ill-considered or opportunistic. In this sense, there was a level of planning; the sentencing judge was satisfied that the attack was not simply a response to an unforeseen confrontation. Thus, although the judge was wrong to identify the statutory basis for his finding of aggravation, what he took into account were the matters set out in the passage quoted above. There was no error in treating those matters as aggravating; the incorrect statutory classification cannot be said to have affected the sentence imposed. The error was immaterial."

63. Regardless of whether the judge in the present case was purporting to apply s 21A(2)(n), there was no error in taking into account a limited degree of planning as it was a factor that affected the relative seriousness of the offence. Submissions were made by the representatives of both applicants to his Honour to the effect that he should find the offence was spontaneous and unpremeditated. Having regard to the agreed facts that included that 10 men, some of whom had taken up various offensive weapons and instruments, gathered and attended the victims' home following the earlier incident involving Mr Alesbhi and Chris Brown, the submissions were rightly rejected.

64. There is no merit in this ground.

Esbhi Ground 3 – error in failing to take into account Mr Esbhi's voluntary return to Australia

65. Given that no submission was put to the sentencing judge concerning Mr Esbhi’s voluntary return to Australia, it is difficult to conclude that failure to take that circumstance was an error. Moreover, it is doubtful that his Honour did not have regard to it, even though he did not say so in terms. There is utility in discussing this matter in some detail, however, because it raises an issue that is relevant to the resentencing of both applicants for the fail to appear offence.

66. Mr Esbhi gave evidence as to the circumstances pertaining to the failure to appear charge. After flying to Jakarta the day before he was due to be sentenced, he stayed five days before he and Mr Alesbhi flew to Kuwait. There he was diagnosed with kidney stones so he travelled to Egypt for treatment. His wife and four children joined him in Egypt. After his Egyptian visa expired he travelled with his family to Turkey. They only had a visa for a month and his wife and children made arrangements to return to Australia. He said that at that time:

"I made my decision to return back with my children. … So when my wife and my children left I communicated with [Mr Alesbhi]. I told him that my decision is to return back to Australia. So he said, 'I have the same decision'."

67. Mr Esbhi met up with Mr Alesbhi in Kuwait from where they travelled together to Australia. Prior to doing so, Mr Esbhi contacted Mr Ball, solicitor, who, he was aware, alerted the authorities and he was met by police upon his arrival at Sydney airport.

68. Mr Alesbhi gave similar evidence. He said that he travelled to Indonesia, Kuwait and then Iraq. He said that when he was in Iraq he was "very confused and I was thinking about my family". He said, "Then I made my decision that I had to return back to Australia because my family, my kids, everything is here in Australia". The police were waiting for them when they arrived back in Australia, "because we made the arrangement. We contacted … Mr Ball in order to make the arrangement for us and everything was done. When we arrived in the airport, the police just were waiting for us and took us to custody."

69. The judge found that "both offenders ultimately returned to Australia because they were missing their families".

Submissions for Mr Esbhi

70. It was submitted that whether or not Mr Esbhi returned to Australia because he was missing his children, he returned knowing that he was surrendering himself to the authorities. His actions had a public utility in this regard. This was a matter that was also relevant to issues of remorse and prospects of rehabilitation in that it demonstrated a willingness to comply with the law and accept responsibility for the consequences of the offences.

Submissions for the Crown

71. The Crown submitted that whilst Mr Esbhi ultimately voluntarily returned to the jurisdiction, this was at a stage when he had been absent for almost six months during which time the court time allocated for the sentence judgment was wasted and warrants had to be issued, maintained and ultimately executed: Samuel v R [2017] NSWCCA 239 at [58]-[59].

72. The Crown pointed to the fact that the applicants' voluntary return to Australia was the subject of evidence and was referred to in the course of submissions, including by the Crown who acknowledged its relevance. It was submitted that even though the judge did not expressly refer to it, he was undoubtedly aware of it.

Consideration

73. It was a matter of public utility that both applicants returned to Australia voluntarily, aware that their solicitor had alerted the authorities to their return.

74. The matters referred to by the Crown were relevant to an assessment of the objective seriousness of the offence of failing to appear. The voluntary return of the applicants was a subjective factor that counts in their favour. The finding that they returned to Australia because they were missing their families (which I am satisfied was open to his Honour) was a separate issue; it tended against this aspect being regarded as indicative of remorse or a willingness to take responsibility for the offences.

75. There was no evidence as to any attempts made by the authorities to locate the applicants during their absence from the jurisdiction or as to what, if any, extradition arrangements are in place in relation to the countries to which they travelled. However, the public interest in an offender waiving an attempt to resist extradition and surrendering to the jurisdiction of the courts of this country, which was recognised by the High Court in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, was a relevant matter on sentence for the fail to appear offence.

76. The applicants' solicitor (Mr Ball) informed his Honour in his submissions that he had advised the applicant’s families to tell them that his advice was that they should "make arrangements immediately to come back to Australia and be sentenced". The evidence of both applicants was quite clear: they knew that they would be met by the authorities and taken into custody upon their return to Sydney.

77. This is a factor that should be taken into account in the applicants' favour in considering the sentencing discretion afresh in respect of the fail to appear offence.

Alesbhi Ground 1; Esbhi Ground 5 – the offence of failing to appear was not properly before the District Court

78. As indicated earlier, these grounds were withdrawn following the hearing. However it is worth mentioning some of the argument that had been advanced in order to draw attention to a procedural aspect that may have a bearing on the District Court's jurisdiction in dealing with an offence against s 79 of the Bail Act of failing to appear.

79. The District Court clearly has jurisdiction; the question is how that jurisdiction is invoked. Section 80 of the Bail Act is in the following terms:

"80 Proceedings for fail to appear offence

(1) Proceedings for a fail to appear offence may be commenced at any time.

(2) Proceedings for a fail to appear offence are to be dealt with summarily:

(a) by the court dealing with the offence for which the person failed to appear, constituted in the same way, or

(b) where the court referred to in paragraph (a) is the Court of Criminal Appeal, the Supreme Court, the Land and Environment Court or the District Court—by that Court constituted in any other way, or

(c) in any case—by the Local Court.

(3) A fail to appear offence, if dealt with by the Court of Criminal Appeal, is to be disposed of in accordance with:

(a) such rules made under the Supreme Court Act 1970 as are expressed to apply to offences against this section, and

(b) subject to paragraph (a), Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (as if references to the Supreme Court were references to the Court of Criminal Appeal).

Note. The Criminal Procedure Act 1986 makes provision for the summary disposal of matters by the Local Court, the District Court and the Supreme Court.

(4) A person convicted by the Supreme Court, the Land and Environment Court or the District Court of a fail to appear offence is taken, for the purposes of section 5 (1) of the Criminal Appeal Act 1912, to have been convicted of the offence on indictment. Accordingly, an appeal to the Court of Criminal Appeal is available under that section."

80. The prosecution filed Court Attendance Notices in the Local Court alleging the fail to appear offences in respect of each of the applicants following their return from overseas. The charges were then brought to the District Court by employing the procedure in Ch 3 Pt 3 Div 7 of the Criminal Procedure Act 1986 (NSW) for "back up" and "related" summary offences to be dealt with at the same time the District or Supreme Courts are dealing with indictable offences following committal for trial or sentence. In this case there were certificates under s 166 of the Criminal Procedure Act which referred to a "related offence" in the attached Court Attendance Notice.

81. The applicants contended that the fail to appear offences were neither "back up" nor "related" offences as defined in s 165 of the Criminal Procedure Act and so the District Court had no power to deal with them by that procedure. They contended that for the District Court to exercise jurisdiction in dealing with the offences (per s 80(2)(a) or (b) of the Bail Act) it was necessary for the summary jurisdiction of the District Court to be invoked by the prosecutor making an application to institute such proceedings pursuant to Ch 4 Pt 4 of the Criminal Procedure Act (which applies to the District Court by virtue of s 170(3)).

82. Given the withdrawal of these grounds, the question whether the applicants are correct in this contention is unnecessary for this Court to decide. It is clear that the District Court has jurisdiction under the Bail Act to deal with an offence of failing to appear (per s 80). However, whatever be the formal mechanism to bring such a charge before the Court, it is doubtful that the provisions of Ch 3 Pt 3 Div 7 of the Criminal Procedure Act are appropriate.

Alesbhi Ground 2; Esbhi Ground 6 – failure to have regard to limitations imposed by s 168(3) Criminal Procedure Act and s 58 Crimes Act

Alesbhi Ground 2A – failure to take into account the policy behind these provisions

83. Mr Alesbhi contended that even if the fail to appear offence was properly before the District Court pursuant to s 166, the judge was constrained by the terms of s 168(3) of the Criminal Procedure Act and, in turn, s 58(1) of the Crimes (Sentencing Procedure) Act. The former constrains the District Court to the statutory limitations of the Local Court when dealing with a related summary offence. Those limitations include that in s 58(1) which is to the effect that the Local Court cannot accumulate sentences so as to yield an overall result that exceeds 5 years.

84. It was submitted that with the indicative sentence for the affray offence being imprisonment for 5 years 5 months, it may be inferred that 7 months of the sentence for the fail to appear offence was accumulated so as to yield the aggregate sentence of 6 years. A Local Court would not have had the power to do so, and hence his Honour did not have that power either.

85. The Crown (correctly) submitted that s 58(1) of the Crimes (Sentencing Procedure) Act did not apply. That provision constrains the imposition of a sentence to be served partially or wholly consecutively upon another sentence. In this case, there was no sentence imposed for the fail to appear offence. There was notional partial accumulation of the two indicative sentences but it was only the aggregate sentence that was imposed.

83. This ground has no merit as it is based upon a premise that the judge partially accumulated the sentence for the fail to appear offence upon that which he indicated for the affray offence. He did not say so and he was not required to do so. All the judge was required to do was assess an aggregate sentence that properly reflected all relevant aspects including the principle of totality. Any "accumulation" of the individual sentences he indicated he would have imposed if not imposing an aggregate sentence was notional.

84. There is no doubt that summary offences included in a multiple sentencing exercise in the District (or Supreme) Court may be included in an aggregate sentence: R v Price [2016] NSWCCA 50; 75 MVR 89 at [80]. In their written submissions, counsel for Mr Alesbhi did not identify any authority for the proposition inherent in this ground, namely that whenever a summary offence on a s 166 Certificate is included in an aggregate sentence imposed in the higher courts, the aggregate sentence can never exceed 5 years (absent the nominated exceptions in s 58(3) and (3A) of the Crimes (Sentencing Procedure) Act). The oral submissions of Mr James QC at first maintained this proposition (T5.42-7.3) and then seemingly abandoned it (T7.45) but in the end did not assist the Court in finding any merit to the argument.

Alesbhi Grounds 4A and 4B – error in finding the objective seriousness of the offences were above the mid-range

88. The sentencing judge recounted the facts pertaining to the affray offence, referred to the matters he found to be aggravating and announced that the offence was "above a mid-range offence". He followed the same approach with the fail to appear offence by announcing at the end of his summary of the circumstances that it, too, was "above a mid-range offence".

89. Grounds 4A and 4B were added by way of a response to the written submissions for the Crown in relation to the manifest excess ground which noted that Mr Alesbhi's submissions had not challenged the findings as to objective seriousness made by the sentencing judge.

90. There is no need to deal with these grounds in their terms as it is necessary to exercise the sentencing discretion afresh and, given the challenge now raised, for the Court to make its own assessment.

Resentencing

91. Submissions made in support of the manifest excess ground raised by both applicants may be redirected to the task of exercising the sentencing discretion afresh.

Submissions for Mr Alesbhi

92. Counsel submitted that the indicative sentences for each of the two offences were plainly unjust and this was relevant to the primary issue as to the reasonableness of the aggregate sentence imposed.

93. The following points were made in relation to the affray offence:

• There was a degree of provocation in that Mr Alesbhi believed, albeit mistakenly, that the comment by Chris Brown ("mongrel dog") was directed at him.

• While Mr Alesbhi was jointly responsible for the conduct of the other participants in the affray, it was relevant to have regard to the lesser role he played.

• Mr Alesbhi was of prior good character and was found to have reasonable prospects of rehabilitation. It was submitted that his subjective case was a positive one.

• Sentences imposed in a significant number of other cases point to the sentence for the affray offence as being overly severe.

94. As to the fail to appear offence, the following points were made:

• The decision to flee the jurisdiction arose from a mistaken understanding that the sentencing judge had said he was going to impose a sentence of imprisonment for ten years. The judge also considered it more likely than not that at an early stage of the proceedings, previous representatives of the offenders had advised that they were unlikely to receive a sentence of imprisonment at all.

• Mr Alesbhi voluntarily returned to the jurisdiction.

Submissions for Mr Esbhi

95. It was acknowledged in the submissions for Mr Esbhi that the affray offence was "undoubtedly serious" given he had involved himself in an offence of violence in which weapons were used to attack two victims on their own property. However, the following points were made:

• Mr Esbhi's use of a bucket suggested his involvement, if not spontaneous, was not well considered.

• Mr Esbhi was 34 years of age and of prior good character.

• Sentences imposed in other cases as well as sentencing statistics indicate that the sentence assessed by the primary judge is excessive.

96. It was submitted in relation to the fail to appear offence:

• It was a misunderstanding as to the sentence the judge intended to impose that gave rise to Mr Esbhi leaving the jurisdiction.

• He returned voluntarily.

• He had already pleaded guilty. There was no disruption to any trial process or concern as to the loss of witnesses. He took responsibility and explained the reason for his failing to appear.

• Sentencing statistics support the proposition that the sentence assessed by the primary judge is excessive.

Submissions for the Crown

97. In response to the submissions for both applicants the Crown submitted:

• A mistaken belief by Mr Alesbhi that the comment about a "mongrel dog" was directed at him was of little or no moment given the extreme nature of the response.

• Resort to violence as a response to some perceived misconduct is to be severely discouraged and denounced rather than regarded as a mitigating factor.

• The sentencing judge's remarks indicate he was mindful of the roles played by each applicant.

• There is no challenge to the judge's finding that both of the offences were above the mid-range of objective seriousness.

• The judge took into account that the applicants had no prior convictions and had reasonable prospects of rehabilitation.

• The judge found specific deterrence was of reduced significance but that general deterrence was important: "those [who] engage in these acts of unprovoked violent lawlessness must understand that they will be dealt with severely" (ROS 14).

• It was necessary for the judge to assess a sentence that was proportionate to the objective gravity of the offence (R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]) notwithstanding the applicants' subjective cases. It was also necessary for the judge to have regard to the maximum penalties for the offences.

• Offences of violence such as this affray can undermine the public's confidence in the security of their streets and homes: Khanwaiz, Shajeel v R; Khanvez, Noman v R; Khanwaiz, Zeeshan v R [2012] NSWCCA 168 at [50].

• Various authorities recognise the careful approach that is needed in having regard to sentences imposed in other cases and the limitations of sentencing statistics. Some of the cases relied upon involved sentencing for affray in conjunction with more serious offences such as manslaughter.

• In relation to the fail to appear offence, both applicants deliberately absconded from the jurisdiction the day before they were due to be sentenced and remained absent for some six months.

• A finding of special circumstances was made and the non-parole period reduced in the case of Mr Esbhi on account of his wife's significant mental health and physical injuries.

• The aggregate sentences (and the indicative sentences) may be regarded as "stern" but they are not beyond the legitimate exercise of sentencing discretion.

Consideration

98. It appears to be common ground that the affray offence was of considerable seriousness. I agree with the primary judge's assessment that its objective gravity is above the mid-range but I would add that this is not to any great extent. Both applicants joined in a group of 10 men clearly intent on violent retribution for a trivial perceived slight by attending the victims' home while armed with multiple offensive implements. It does not assist the applicants much to say that they played lesser roles when they were part of this group and involved themselves in the violence directed towards two innocent victims at their own home. General deterrence was an important consideration in sentencing for such an offence for the reasons identified by the Crown.

99. However, despite the objective gravity of the offence and the need for general deterrence, the starting point of 6 years adopted by the primary judge was too high. It is also out of keeping with the personal circumstances of the applicants that also needed to be taken into account. Principal among those circumstances was the fact that they were mature men (Alesbhi aged 54 and Esbhi aged 31 at the time of the offence) who had no prior convictions and were found to have reasonable prospects of rehabilitation.

100. It is unnecessary to explore the detail of the various cases and statistics that were referred to in the submissions for both applicants except to say that they provide support for the proposition that a lesser sentence was warranted and should have been passed.

101. In my view, the starting point for the sentence for the affray offence in the case of each applicant should be one of 4 years. That should be reduced by 10 per cent on account of their late pleas of guilty. With rounding, the sentences should be 3 years and 7 months.

102. The fail to appear offences were also of significant objective gravity. Such an offence can be committed in a variety of ways but fleeing overseas the day before sentencing is a particularly egregious example. Remaining absent for some six months adds to the gravity of the offence but it is also appropriate to take into account that both men voluntarily returned with the knowledge that the authorities were waiting to take them back into custody. The appropriate sentence is one of 16 months which should be reduced by 25 per cent for the early pleas of guilty so as to yield a sentence of 12 months.

103. An aggregate sentence should be imposed. There should be some notional accumulation of the two indicative sentences. An overall term of 4 years appropriately reflects the totality of criminality.

104. The finding of special circumstances in Mr Esbhi's case should be maintained for the same reasons as such finding was made by the primary judge. I would also make a finding of special circumstances in Mr Alesbhi's case on the basis of his more mature age and his medical conditions.

Orders

105. I propose the following orders in the cases of both Adnan Alesbhi and Bader Esbhi:

1.   Leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Quash the sentences imposed in the District Court on 11 May 2017 and in lieu, sentence each offender to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years 6 months. The sentences are to date from 9 March 2017. The non-parole periods will expire on 8 September 2019 at which time the offenders will become eligible for release on parole.

106. HIDDEN AJ: I agree with R A Hulme J.

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Decision last updated: 09 March 2018