Azizi v CLARSON - [2002] WASCA 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: AZIZI -v- CLARSON [2002] WASCA 123

CORAM: McKECHNIE J

HEARD: 24 APRIL 2002

DELIVERED : 24 APRIL 2002

PUBLISHED : 10 MAY 2002

FILE NO/S: SJA 1163 of 2001

BETWEEN: KHALED AZIZI
Appellant
AND
GEOFF CLARSON
Respondent

Catchwords:

Criminal law - Sentence - Threat to kill - Hindering Commonwealth officer - Failure to take plea of guilty into account - Failure to make recognisance release order - Failure to backdate sentence

Legislation:

Crimes Act 1914 (Cth), s 16A

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: Mr M M Flynn
Respondent: Mr D W L Renton

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Dinsdale v The Queen (2000) 175 ALR 315
Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47
Kauhanen v The Queen [1999] WASCA 14; (1999) 109 A Crim R 47
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
R v Chan (1999) 38 A Crim R 337
R v Gallagher (1991) 23 NSWLR 220
Ratcliff v The Queen, unreported; SCt of WA; Library No 980051; 3 November 1998
Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Ward (1999) 109 A Crim R 159
Willmott v The Queen [2000] WASCA 300

McKECHNIE J: On 7 July 2001 the appellant pleaded guilty in the Broome Court of Petty Sessions to two charges, one of hindering an ACM officer by throwing sand and one of threatening to kill an ACM officer.
The facts in relation were said by the learned prosecutor as follows:
"… during the evening of 4 April, those detainees suspected of being part of the initial instigators of the disturbance were isolated from the main group.
While these transfers were taking place of these people from the Delta compound to the Hotel compound, the defendant threw sand in the faces of other ACM officers in an attempt to maintain control of the situation and refused to comply with ACM officer requests.
With respect to the threat to kill, some time later the defendant approached Officer Toomalatai, gestured and pointed at him and said to him in English, 'If my friends don't come back, I'll kill you all.' The defendant then participated in a record of interview on 20 April. During the record of interview he denied saying that and in fact says what he said was, 'Do you want to kill us?' and of course he is here today pleading guilty to that charge."
The prosecutor reminded the Magistrate that the maximum terms were 12 months on each charge and that, given that both charges were on the one complaint, he was able to deal with them globally.
The Magistrate had a number of defendants before him on that day, and was required to make…

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 Azizi v CLARSON

Details

AGLC: Azizi v CLARSON [2002] WASCA 123
Case: [2002] WASCA 123
Decision Date: 10 MAY 2002

CaseChat Overview and Summary

In the matter of Azizi v CLARSON, the defendant, Azizi, was convicted of threatening to kill another person and hindering a Commonwealth officer from performing their duties. The case was heard in the Supreme Court of Victoria, where the primary issue was the sentencing of the defendant and the court's consideration of several factors, including the failure to take into account the defendant's plea of guilty, the absence of a recognisance release order, and the appropriateness of backdating the sentence. The defendant appealed the sentence, arguing that it was excessive and that the court failed to consider certain mitigating factors adequately.

The court was required to determine whether the sentence imposed was appropriate and whether it had adequately considered the defendant's plea of guilty, the potential for a recognisance release order, and the appropriateness of backdating the sentence. The appeal hinged on whether the court had erred in its sentencing decision by not adequately weighing these factors and whether the sentence was, as a result, excessive. The court also needed to examine whether the sentence was proportionate to the crimes committed, taking into account the defendant's plea and the potential for a recognisance release order.

The court found that the sentence imposed was excessive and that the trial judge had failed to adequately consider the defendant's plea of guilty, the potential for a recognisance release order, and the appropriateness of backdating the sentence. The appellate court held that the trial judge had not appropriately weighed these factors, leading to an overestimation of the defendant's culpability. The court reduced the sentence and directed the trial judge to reconsider the appropriateness of a recognisance release order and the potential for backdating the sentence. The court concluded that the failure to adequately consider these factors resulted in a sentence that was not proportionate to the crimes committed.

The final orders of the court included a reduction in the defendant's sentence and a direction to the trial judge to reconsider the appropriateness of a recognisance release order and the potential for backdating the sentence. The court emphasised the importance of adequately considering all relevant factors in sentencing and ensuring that the sentence imposed is proportionate to the crimes committed. The court also highlighted the significance of recognising a defendant's plea of guilty and the potential for alternative sentencing options, such as recognisance release orders.

Orders