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Alrubae v R

Alrubae v R

Case [2016] NSWCCA 142 18 July 2016

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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

HOEBEN CJ at CL: I agree with R A Hulme J.
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.
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.
Nevertheless these are serious offences that require both specific and general deterrence. The possession of prohibited weapons is a growing and concerning…

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 Alrubae v R

Details

AGLC: Alrubae v R [2016] NSWCCA 142
Case: [2016] NSWCCA 142
Decision Date: 18 July 2016

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