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Alvi v The Queen

Alvi v The Queen

Case [2014] NSWCCA 191 1 October 2014

Appeal

Sentencing

Non-parole Period

Principle of Totality

Special Circumstances

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alvi v R [2014] NSWCCA 191
Hearing dates: 4 August 2014
Decision date: 01 October 2014
Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Bellew J at [3]
Decision:
(1) Leave to appeal is granted;
(2) The sentence in respect of count 7 is quashed and in lieu thereof the applicant is sentenced to a non-parole period of 2 years and 3 months imprisonment commencing on 8 November 2011 and expiring on 7 February 2014 and an additional term of 9 months imprisonment commencing on 8 February 2014 and expiring on 7 November 2014.
(3) The appeal is otherwise dismissed.

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Cases Cited: Collier v R [2012] NSWCCA 213
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Forbes v R [2009] NSWCCA 292
Giles v DPP [2009] NSWCCA 308
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
KAF v R [2009] NSWCCA 184
KC v R [2009] NSWCCA 110
Leddin v R [2008] NSWCCA 242
Leslie v R [2009] NSWCCA 283
Mill v R (1988) 166 CLR 59
Pearce v The Queen [1988] HCA 57; (1998) 194 CLR 610
R v Franks [2005] NSWCCA 196
R v Hamied [2007] NSWCCA 151
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Sharma [2002] NSWCCA 142
R v Thomas (1992) 64 A Crim R 269
Category: Principal judgment
Parties: Ammar Khalid Alvi - Applicant
Regina - Respondent (Crown)
Representation: Counsel:
M Crawford-Fish - Applicant
N Williams - Respondent (Crown)
Solicitors:
Legal Aid New South Wales - Applicant
S Kavanagh Solicitor for Public Prosecutions - Respondent (Crown)

File Number(s): 2011/357222
Publication restriction: Nil
Decision under appeal

Date of Decision:

2013-06-14 00:00:00

Before:

Payne DCJ

Judgment

HOEBEN CJ at CL: I agree with Bellew J. Given the level of criminality involved in these offences and their number, Grounds of Appeal 2 and 3 were quite misconceived.

McCALLUM J: I agree with Bellew J.

BELLEW J: On 8 February 2012 Ammar Khalid Alvi ("the applicant") pleaded guilty in the Local Court to the following offences:

(i) robbery armed with a dangerous weapon on 25 September 2011 (count 1);

(ii) robbery armed with a dangerous weapon on 4 October 2011 (count 2);

(iii) robbery armed with a dangerous weapon on 9 October 2011 (count 3);

(iv) robbery armed with a dangerous weapon on 17 October 2011 (count 4);

(v) robbery armed with a dangerous weapon on 18 October 2011 (count 5);

(vi) robbery armed with a dangerous weapon on 30 October 2011 (count 6);

(vii) possess unauthorised pistol on 8 November 2011 (count 7); and

(viii) possess unregistered firearm (pistol) on 8 November 2011 (count 8).

The offences in each of counts 1 to 6 were contrary to s. 97(2) of the Crimes Act 1900, the maximum penalty for which is 25 years imprisonment.…

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 Alvi v The Queen

Details

AGLC: Alvi v The Queen [2014] NSWCCA 191
Case: [2014] NSWCCA 191
Decision Date: 01 October 2014

CaseChat Overview and Summary

The Court of Criminal Appeal of the Supreme Court of New South Wales heard an appeal by Ammar Khalid Alvi against his sentence for multiple robberies and firearm offences. Alvi had pleaded guilty to six counts of robbery armed with a dangerous weapon and two counts of possessing an unauthorised pistol and an unregistered firearm. The trial judge imposed a sentence of 9 years imprisonment with a non-parole period of 5 years. The appeal was heard on three grounds: (1) the trial judge failed to set a non-parole period for count 7; (2) the trial judge failed to properly apply the principle of totality; and (3) the sentences were manifestly excessive. The Court found that the trial judge erred in imposing a fixed term instead of a non-parole period for count 7, and rectified the error by treating the fixed term as the total sentence. The Court also found that the trial judge properly applied the principle of totality, and that the sentences were not manifestly excessive despite the guideline judgment in R v Henry. The Court granted leave to appeal, quashed the sentence for count 7, and imposed a new sentence of 2 years and 3 months imprisonment with a non-parole period of 2 years and 3 months, and an additional term of 9 months. The appeal was otherwise dismissed.

Orders