Ali v The Queen - [2021] NSWCCA 174

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ali v R [2021] NSWCCA 174
Hearing dates: 14 July 2021
Date of orders: 06 August 2021
Decision date: 06 August 2021
Before: Meagher JA at [1]
Walton J at [2]
Harrison J at [3]
Decision:
Refuse leave to appeal

Catchwords:
CRIMINAL LAW – sentence – appeal against severity of sentence – firearms offences – whether sentencing judge erred in assessment of objective seriousness of offences – where sentencing judge held that there was no basis for finding that a shotgun had been used for purposes of criminal activity – whether sentencing judge erred thereafter by failing to refer to a factor that he did not take into account, namely whether the firearm was intended for use in relation to criminal activity – whether sentencing discretion miscarried – no error demonstrated – leave to appeal refused

Cases Cited:
Connell v R [2020] NSWCCA 352
Dunshea v R [2016] NSWCCA 244
R v El Masri [2005] NSWCCA 167
Sanchet v R [2006] NSWCCA 291

Category: Principal judgment
Parties: Mostapha Ali (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Odgers SC (Applicant)
B Baker with A Ilic (Respondent)
Solicitors:
Bevan & Co (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/134933
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Wagga Wagga District Court

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 125

Date of Decision:

24 April 2020

Before:

Judge Lerve

File Number(s):

2019/134933

Judgment

MEAGHER JA: I agree with Harrison J.
WALTON J: I agree with the reasons for judgment given by Harrison J and the orders proposed by his Honour.
HARRISON J: Mostapha Ali pleaded guilty to possessing a shortened firearm and a loaded firearm in a public place. These offences related to the same weapon. Mr Ali also admitted to a number of other offences that were to be taken into account on sentencing. His Honour Lerve DCJ sentenced Mr Ali on 24 April 2020 for these offences to an aggregate term of 4 years and 6 months with a non-parole period of 3 years. Mr Ali will be eligible for release on parole on 29 April 2022. His Honour indicated sentences of 4 years and 2 months and 2 years and 3 months respectively for the two primary offences. His Honour allowed a 25% discount for the plea so that the starting points for the two offences were 5 years and 9 months and 3 years.
Mr Ali now seeks leave to appeal to this Court against the severity of his sentence upon the single ground that his Honour erred in the assessment of the objective seriousness of the firearms offences.
His Honour rejected Mr Ali’s evidence that he “had no intention of using the weapon”, referring to evidence from Mr Ali that he had used the shotgun to kill snakes, as well as the evidence that it was loaded when he was apprehended and that there was a spare shell nearby. His Honour…

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 Ali v The Queen

Details

AGLC: Ali v The Queen [2021] NSWCCA 174
Case: [2021] NSWCCA 174
Decision Date: 06 August 2021

CaseChat Overview and Summary

In Ali v The Queen, the appellant challenged the severity of his sentence for firearms offences. The appeal was heard by the High Court of Australia, which was asked to determine whether the sentencing judge had erred in assessing the objective seriousness of the offences. The appellant argued that the sentencing judge overlooked the potential criminal use of a shotgun, which should have increased the severity of his sentence. The central issue before the court was whether the sentencing judge had made an error in his assessment of the objective seriousness of the offences and whether this oversight constituted a miscarriage of sentencing discretion.

The court examined the sentencing judge's reasoning and found that there was no basis for concluding that a shotgun had been used for criminal purposes. The court held that the sentencing judge did not err in his assessment, as the evidence did not support such a finding. Additionally, the court found that the sentencing judge did not err by failing to consider whether the firearm was intended for criminal use, as this was not a factor the judge needed to address given the evidence presented. The court concluded that the sentencing discretion was not miscarried and that no error had been demonstrated in the assessment of the objective seriousness of the offences.

As a result of the court's reasoning, the appeal was dismissed, and leave to appeal was refused. The court's decision affirmed the original sentence imposed on the appellant, upholding the sentencing judge's assessment and reasoning in the case.

Orders