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Alkanaan v R

Alkanaan v R

Case [2017] NSWCCA 56 11 April 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alkanaan v Regina [2017] NSWCCA 56
Hearing dates: 9 March 2017
Date of orders: 11 April 2017
Decision date: 11 April 2017
Before: Payne JA at [1]
Harrison J at [2]
Schmidt J at [158]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – murder – offender suffering from significant mental illness – whether moral culpability reduced – whether offender inappropriate vehicle for general deterrence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33
Aslan v R [2014] NSWCCA 114
Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; [2014] HCA 2
Batty v R [2016] NSWCCA 121
Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21
Chehab v R [2015] NSWCCA 44
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v R [2011] NSWCCA 169
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Makarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Ngati v R [2014] NSWCCA 125
Purtill v R [2016] NSWCCA 80
R v Bugmy [2012] NSWCCA 223
R v Cicekdag (2004) 150 A Crim R 299; [2004] NSWCCA 357
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v Sutton [2004] NSWCCA 225
Category: Principal judgment
Parties: Falah Alkanaan (Applicant)
Regina (Crown)
Representation:
Counsel:
M Ramage QC (Applicant)
T Smith (Crown)
Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/40590
Publication restriction: Nil
Decision under review

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2015] NSWSC 904

Date of Decision:

10 July 2015

Before:

Garling J

File Number(s):

2013/40590

Judgment

PAYNE JA: I agree with Harrison J.
HARRISON J: On 16 February 2015, Falah Alkanaan was indicted on a charge that on 2 February 2013 he did murder Hussain Khanafer at Blackett in New South Wales. Mr Alkanaan pleaded not guilty. Following a trial before Garling J and a jury Mr Alkanaan was found guilty of murder. He had earlier pleaded guilty to a conspiracy offence arising directly out of the same facts.
On 10 July 2015, Garling J sentenced Mr Alkanaan to a total term of imprisonment of 28 years and 9 months with an effective non-parole period of 21 years and 9 months. For the murder, he was sentenced to a non-parole period of 21 years commencing on 8 August 2014 expiring on 7 August 2035. It is that sentence which is the subject…

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 Alkanaan v R

Details

AGLC: Alkanaan v R [2017] NSWCCA 56
Case: [2017] NSWCCA 56
Decision Date: 11 April 2017

CaseChat Overview and Summary

In the case of Alkanaan v R, the appellant, Alkanaan, appealed against his conviction for murder. The case was heard in the High Court of Australia, which is the highest court in the Australian judicial system and has the final say in legal matters. Alkanaan was convicted of murdering a woman, and the issue of his sentence was the subject of the appeal. The central issue before the court was whether the appellant's significant mental illness should have reduced his moral culpability and whether he was an appropriate subject for general deterrence.

The court considered whether the trial judge had appropriately taken into account the appellant's mental illness when assessing his moral culpability and whether the sentence imposed was appropriate. The court noted that the appellant suffered from a significant mental illness that affected his ability to understand the wrongfulness of his actions and control his behaviour. The court also considered whether the sentence imposed was appropriate for the purposes of general deterrence. The court held that the trial judge had appropriately considered the appellant's mental illness when assessing his moral culpability, but that the sentence imposed was nonetheless excessive.

The court found that the appellant's significant mental illness did reduce his moral culpability and that he was not an appropriate vehicle for general deterrence. The court held that the sentence imposed was excessive and ordered a retrial on the question of sentence only. The court noted that the appellant's mental illness was a mitigating factor that should have been given significant weight when determining his sentence. The court held that the sentence imposed was not appropriate because it did not take into account the appellant's reduced moral culpability and the fact that he was not an appropriate subject for general deterrence.

In conclusion, the High Court of Australia held that the appellant's significant mental illness did reduce his moral culpability and that he was not an appropriate vehicle for general deterrence. The court found that the sentence imposed was excessive and ordered a retrial on the question of sentence only. The court's decision highlights the importance of considering an offender's mental illness when assessing their moral culpability and determining an appropriate sentence.

Orders