Ali v The Queen

[2011] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ali v R [2011] NSWCCA 184

Hearing dates:

14 July 2011

Decision date:

15 August 2011

Jurisdiction:

Common Law - Criminal

Before:

Bathurst CJ at 1
Buddin J at 2
Harrison J at 3

Decision:

1. Grant the applicant leave to appeal.

2. Appeal allowed in part.

3. Quash the sentence in relation to count 2 and in lieu thereof impose a non-parole period of 9 months to date from 16 November 2010 and to expire on 15 August 2011. The head term of 18 months in respect of that count is confirmed. The first day on which the applicant is due for release is 15 August 2011.

Catchwords:

CRIMINAL LAW - severity appeal - whether sentence manifestly excessive - where sentencing judge found "special circumstances" - where sentence failed to give effect to that finding - non-parole period reduced by 2 months

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Category:

Principal judgment

Parties:

Alzaid Ali (Applicant)
Crown (Respondent)

Representation:

F Veltro (Crown)
S Kavanagh (Solicitor for Public Prosecutions)

File Number(s):

2009/217585

 Decision under appeal 

Before:

Ashford DCJ

File Number(s):

2009/217585

Judgment

1. BATHURST CJ : I agreed with the orders made by the Court on 14 July 2011 for the reasons provided below by Harrison J.

1. BUDDIN J : For the reasons given by Harrison J, I joined in the orders made by the Court on 14 July 2011.

1. HARRISON J : The applicant, who appeared in this Court unrepresented, seeks leave to appeal against sentences imposed on him by her Honour Ashford DCJ on 15 December 2010. At the end of the hearing of the application the Court made the following orders:

1. Grant the applicant leave to appeal.

2. Appeal allowed in part.

3. Quash the sentence in relation to count 2 and in lieu thereof impose a non-parole period of 9 months to date from 16 November 2010 and to expire on 15 August 2011. The head term of 18 months in respect of that count is confirmed. The first day on which the applicant is due for release is 15 August 2011.

1. My reasons for joining in these orders are as follows.

1. The applicant had pleaded guilty to two counts of reckless wounding and one count of being an accessory after the fact to the discharge of a firearm with intent to cause grievous bodily harm. He was sentenced on the accessory count to a fixed term of 6 months imprisonment from 16 February 2010 expiring on 15 August 2010. On the reckless wounding of the first victim he was sentenced to a non-parole period of imprisonment of 15 months from 16 May 2010 expiring on 15 August 2011 with a balance of term of 5 months commencing on 16 August 2011 expiring on 15 January 2012. On the reckless wounding of the second victim he was sentenced to a non-parole period of imprisonment of 11 months from 16 November 2010 expiring on 15 October 2011 with a balance of term of 7 months from 16 November 2011 expiring on 15 May 2012. The applicant was sentenced to an effective total term of 2 years and 3 months commencing on 16 February 2010 and expiring on 15 May 2012 and an effective non-parole period of 1 year and 8 months from 16 February 2010 expiring on 15 October 2011.

1. The applicant relied upon the following grounds of appeal:

1. The learned sentencing Judge erred in the manner in which she discounted the sentences for the utilitarian value of the applicant's pleas of guilty.

(a) The learned sentencing Judge erred in giving regard to the timing of the guilty plea entered when assessing the utilitarian value of the guilty plea.

(b) The learned sentencing Judge erred in not allowing an appropriate discount for the utilitarian value of the pleas of guilty.

2. The learned sentencing Judge erred in her approach to the application of the Crimes (Sentencing Procedure) Act1999 ss 3A, 21A and 44.

(a) Her Honour erred when she found aggravating factors under s 21A(3)(d) and (j).

(b) Her Honour erred by sentencing for specific deterrence for this offence under s 3A.

(c) Her Honour erred by granting special circumstances under s 44(2) but failed to act upon her finding.

3. The learned sentencing Judge erred in her approach and application to the applicant's sentences.

(a) Her Honour erred when she failed to backdate the sentences to the date the applicant was taken into custody.

(b) Her Honour erred when she failed to order the sentences to be served concurrently.

(c) Her Honour erred when she found no evidence of knife injury to Hassan Al Jebori, which formed the basis for count 2, but imposed a sentence notwithstanding her finding.

4. The learned sentencing Judge erred when she considered all possible alternatives to imprisonment by finding counsel for the accused did not submit to the contrary.

5. The sentences are manifestly excessive.

1. The offences of reckless wounding carry a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years. The accessory after the fact offence carries a maximum penalty of 5 years imprisonment with no standard non-parole period.

Background

1. The circumstances out of which the offences emerged were long and bizarre. In brief the applicant became involved in a motor vehicle pursuit across the suburbs around Lidcombe in Sydney during the course of which he twice alighted from the vehicle in which he was travelling and stabbed passengers in other vehicles involved in the chase. Her Honour's remarks on sentence contain a detailed recitation of these facts to which it is presently unnecessary in detail to refer. Much of what happened is captured in recorded telephone conversations between the occupants of the vehicles as events unfolded. They concluded effectively when a co-accused Mr Tarek Zahed, who the applicant had apparently enlisted to assist him, discharged a firearm striking an occupant of one of the other cars.

Subjective features

1. The applicant was aged 34 when sentenced. He originally came to Australia from Fiji in 1987 and lived with his mother and stepfather. He did not get on with the latter and entered into a period of juvenile delinquency which continued on into long periods of incarceration in adult gaols. A psychological report from Mr Watson-Munro indicated that the applicant had engaged in some drug use but there was no history of alcohol abuse. The applicant was deeply concerned about deportation and had spent some time at Villawood detention centre. In gaol he had completed courses on cognitive behaviour, stress and anger management. He came with a letter of support from his mother and expressed remorse in writing to the sentencing judge.

Consideration

1. In sentencing the applicant, her Honour found special circumstances. However, it became apparent during the course of the proceedings in this Court that the sentence that she imposed upon the applicant failed to give effect to that finding. In her remarks on sentence her Honour said, "The total effective sentence therefore is twenty-nine months with an effective non-parole period of twenty months." That was wrong. The total effective sentence was in fact 27 months. The difference is important because the respective ratios of non-parole period to total term are 70 per cent in the case of the miscalculated sentence and just over 74 per cent in the case of the actual sentence. It is unclear from her Honour's remarks on sentence what allowance she intended to make for special circumstances, but it is clear that the sentence she imposed in fact made no appreciable allowance at all. The statutory ratio was effectively not varied.

1. As I have already mentioned, the sentencing judge ordered the sentence to commence on 16 February 2010. However, the applicant had been in custody since 30 September 2009. During the intervening period of 4 months and 16 days he had been serving the balance of parole in respect of an earlier sentence. During the course of the hearing in this Court it emerged that the sentencing judge had not considered that period when dealing with the issue of "special circumstances". In fact, when regard is had to the 4 months and 16 days during which the applicant was in custody before the commencement of the sentences imposed by her Honour, the ratio which the non-parole period of approximately 24.5 months bears to the total term of approximately 31.5 months in fact becomes one of just under 78 per cent. In those circumstances, the Crown very properly conceded that error had occurred and that a reduction of 2 months from the non-parole period in respect of the sentence for count 2 would produce a sentence that more accurately reflected her Honour's finding of "special circumstances".

1. The orders that were made give effect to that adjustment.

1. I have considered the applicant's specified grounds of appeal supported by his written submissions and oral presentation in this Court. I am unable to conclude that any of these grounds of appeal is made out. I am not of the opinion that her Honour made any errors of the type contended for by the applicant. I would not in any event have been satisfied, apart from the limited way dealt with in the orders that have been pronounced by this Court, that some sentence other than that imposed by her Honour is warranted in law.

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Decision last updated: 16 August 2011