Alrubae v R

Case [2016] NSWCCA 142


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Alrubae v R [2016] NSWCCA 142
Hearing dates:18 July 2016
Decision date: 18 July 2016
Before: Hoeben CJ at CL at [1];
Rothman J at [2];
R A Hulme J at [6]
Decision:

1. Leave to appeal against sentence granted.
2. Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – possess unauthorised pistol and prohibited firearm – whether error in assessment of offence as in the middle of the range of seriousness where the pistol was an imitation – assessment was one reasonably open to be made – aggregate sentence not manifestly excessive – appeal dismissed
Legislation Cited: Firearms Act 1996 (NSW) ss 3, 7(1)
Cases Cited: Atkinson v R [2014] NSWCCA 262
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Ballard v R [2011] NSWCCA 193
BP v The Queen [2010] NSWCCA 159
Bullock v R [2016] NSWCCA 131
Chompeay v R [2011] NSWCCA 96
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Do v R [2010] NSWCCA 182
El Masri v R [2014] NSWCCA 13
Henderson v R [2012] NSWCCA 65
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Marracos v R [2008] NSWCCA 267
Mulato v R [2006] NSWCCA 282
R v Harris [2001] NSWCCA 322; 125 A Crim R 27
R v Krstic [2005] NSWCCA 391
Salafia v R [2015] NSWCCA 141
Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Tran v R [2010] NSWCCA 183
Wong v The Queen [2001] HCA 64; 207 CLR 584
Yammine v R [2010] NSWCCA 123
Category:Principal judgment
Parties: Zakareah Alrubae ( Applicant)
Regina (Respondent)
Representation:

Counsel:
Mr D Barrow (Applicant)
Ms N Noman SC (Crown)

  Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions
File Number(s):2014/188922
 Decision under appeal 
Court or tribunal:
District Court
Date of Decision:
18 May 2015
Before:
Sides QC DCJ
File Number(s):
2014/188922

Judgment

  1. HOEBEN CJ at CL: I agree with R A Hulme J.

  2. ROTHMAN J: I reiterate my comments in relation to the sentencing of a youth of immature age that I gave in BP v The Queen [2010] NSWCCA 159 and most recently in Bullock v R [2016] NSWCCA 131.

  3. I am prepared to accept that in this case the applicant's personal circumstances of life in Iraq and Syria involved significant hardship, which may have made integration into Australia and adherence to its norms of behaviour more difficult. However, there is no evidence of the particular hardship of this applicant.

  4. Nevertheless these are serious offences that require both specific and general deterrence. The possession of prohibited weapons is a growing and concerning…

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AGLC
Alrubae v R [2016] NSWCCA 142
Case
[2016] NSWCCA 142
Decision Date

CaseChat Overview and Summary

The appellant, Alrubae, appealed against his conviction and sentence for possessing an unauthorised pistol and a prohibited firearm. The matter was heard in the High Court of Australia. The primary issue before the court was whether the trial judge erred in assessing the seriousness of the offence, considering that the pistol was an imitation. The court also considered whether the aggregate sentence imposed was manifestly excessive.

The court found that the trial judge's assessment of the offence's seriousness was one that could reasonably be made, despite the pistol being an imitation. The court emphasised the importance of the offender's state of mind and the potential harm that could have been caused if the imitation pistol had been perceived as real. The court also found that the aggregate sentence imposed was not manifestly excessive, taking into account the totality of the offences committed. The court noted that the trial judge had carefully considered the principles of sentencing and had imposed a sentence that was proportionate to the gravity of the offences.

Accordingly, the appeal was dismissed. The court upheld the trial judge's assessment of the seriousness of the offence and the aggregate sentence imposed. The decision serves as a reminder of the importance of considering the totality of the circumstances in assessing the seriousness of an offence and imposing an appropriate sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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