Azzi v R

Case [2008] NSWCCA 169 22 July 2008

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
AZZI v REGINA [2008] NSWCCA 169

FILE NUMBER(S):
2007/3043

HEARING DATE(S):
Wednesday 21 May 2008

JUDGMENT DATE:
22 July 2008

PARTIES:
John AZZI
v REGINA

JUDGMENT OF:
James J Hoeben J Hall J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/21/0019

LOWER COURT JUDICIAL OFFICER:
Armitage DCJ

LOWER COURT DATE OF DECISION:
15 June 2007

COUNSEL:
Crown: N Adams
App: A Francis

SOLICITORS:
Crown: S Kavanagh
App: S O'Connor

CATCHWORDS:
CRIMINAL LAW – SENTENCING – appeal against sentence – offender convicted of aggravated assault with intent to rob – alleged sentencing judge erred in precluding consideration of an available sentence – sentencing judge had expressed a provisional sentence then revised the sentence upwards – appeal dismissed

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Law Enforcement (Power and Responsibilities) Act 2002

CATEGORY:
Principal judgment

CASES CITED:
Kutchera v Regina [2007] NSWCCA 121
Regina v Henry (1999) 46 NSWLR 346
Regina v Mason [2000] NSWCCA 207
Regina v Tuncbilek [2004] NSWCCA 139

TEXTS CITED:

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3043
JAMES J
HOEBEN J
HALL J
TUESDAY 22 JULY 2008

JOHN AZZI v REGINA

Judgment

JAMES J: I agree with Hall J
HOEBEN J: I agree with Hall J and the order he proposes.
HALL J: The applicant pleaded guilty on 30 April 2007 at Parramatta District Court to one count of aggravated assault with intent to rob contrary to s.95(2)(a) of the Crimes Act 1900. The circumstance of aggravation was the use of corporal violence upon the victim. The offence occurred on 17 May 2006 at 9.20 pm.
On 15 June 2007, the applicant was sentenced to a non-parole period of 18 months to commence on 21 July 2007 and to expire on 20 January 2009 with a balance of term of 18 months to expire on 20 July 2010.
The sentencing judge, pursuant to s.32 of the Crimes (Sentencing Procedure) Act 1999 took into account an offence of failing to disclose the identity of other persons in his vehicle contrary to s.16(2) of the Law Enforcement (Power and Responsibilities) Act 2002.
On 12 February 2008, the applicant, by notice dated 12 February 2008, sought leave to appeal against the sentence imposed on him. The only ground of appeal proposed to be relied upon was in the following terms:-
“The sentencing judge erred in concluding that a sentence of two years’ imprisonment with a non-parole period of 12 months was manifestly inadequate and, in doing so, improperly constrained the exercise of his sentencing discretion.”
The remarks on sentence
The sentencing judge noted that the offence carried a maximum penalty of 20 years’ imprisonment. A statement of agreed facts (Exhibit A3) was tendered at the sentencing hearing (paragraphs 2, 9, 10, 11, 12, 14 and 26, however, were not agreed).
A hearing was conducted on the evidence to resolve the matters in dispute.…

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 Azzi v R

Details

AGLC: Azzi v R [2008] NSWCCA 169
Case: [2008] NSWCCA 169
Decision Date: 22 July 2008

CaseChat Overview and Summary

The appellant, Azzi, appealed against his sentence after being convicted of aggravated assault with intent to rob. The appeal centred on the contention that the sentencing judge erred in precluding consideration of an available sentence. The case was heard and dismissed by the court. The appellant's argument was that the sentencing judge initially expressed a provisional sentence which he later revised upwards. The appellant claimed that this revision was improper and that the judge should have considered the provisional sentence as an available option.

The central legal issue was whether the sentencing judge erred in his approach to determining the appropriate sentence. Specifically, the court had to examine whether the judge had unlawfully excluded the provisional sentence from consideration when ultimately deciding on the final sentence. The appellant argued that the judge should have given due weight to the provisional sentence as a viable option. The Crown, on the other hand, argued that the judge was justified in revising his sentence upwards, considering the seriousness of the offence and the appellant's criminal history.

The court found that the sentencing judge did not err in his approach. Initially, the judge had not reached a firm conclusion and had not fully considered the sentencing statistics or the referenced judgments at the time he made the comment about a provisional sentence. Upon further consideration of these matters, the judge revised his assessment, concluding that the initially considered sentence would be inappropriate. The court held that the judge was justified in this revision, as the revised sentence reflected the seriousness of the offence more accurately. The judge's ultimate decision was deemed to be within the bounds of appropriate sentencing discretion.

The court dismissed the appeal, confirming that the sentencing judge did not err in his determination of the sentence. The final orders affirmed the sentence imposed by the sentencing judge, rejecting the appellant's contention that an available sentence had been improperly excluded from consideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JAMES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JAMES J

The Crown, in this respect, referred to the fact that the offence was aggravated by the fact that the applicant was on conditional liberty at the time of the offence and that the sentencing judge was justified in taking the view that his prior criminal antecedents entitled him to no particular degree of leniency. It was noted that the sentencing judge determined that there had been a limited amount of planning involved in the offence.Consideration The submissions on sentence before the sentencing judge commenced on 15 June 2007. At an early point, the Crown provided him with a copy of the judgment of this Court in Regina v Tuncbilek [2004] NSWCCA 139. Reference was made to this Court’s observations in that case in paragraph [20] to the fact that the Henry guideline (Regina v Henry (1999) 46 NSWLR 346) may provide a reference point for judges sentencing robbery offenders who fall outside the guideline. Later and during submissions (at t.21), the sentencing judge said that he was thinking of a non-parole period of 12 months dating from 15 June 2007 following upon which the Crown Prosecutor observed that such a sentence would be appellable error and would be “too low” and referred again to the “guideline judgment”, the objective seriousness and to the subjective factors. The sentencing judge then continued to receive submissions, principally on behalf of the applicant with the Crown later making some further brief submissions on the issue of the knife and the Henry guideline “which is a four or five year head sentence (t.25). The sentencing judge then responded by saying a period of that length was not appropriate for an offence “that falls short of actual robbery” (t.25). The Crown referred to the sentencing statistics which indicated 52% of offenders received a sentence of between 38 and 48 months and repeated what had been said earlier, namely, that a sentence on the basis of a non-parole period of 12 months with a 12 months parole period “would be appellable error” (t.26). The Crown, again, referred to the sentencing statistics and restated the matters that were said to put the applicant “in a category of greater seriousness than most offenders who are his age …” (t.26). There was then a short adjournment. When the hearing resumed, the sentencing judge made the statement set out in paragraph 1.6 of the written submissions for the applicant (see paragraph [19] of this judgment) indicating that he had revised his assessment. Importantly, he then referred to the sentencing statistics and to the judgment in Tuncbilek (supra) and to the judgment of the Court in Regina Mason [2000] NSWCCA 207 indicating that those judgments were of significance to the determination of the sentence – more so than the statistics which he said only provided “a very broad indication as to the parameters of sentencing” but nonetheless indicated that they were of some assistance. I do not consider that the passage in the remarks on sentence criticised in the applicant’s written submissions reveals error as argued for the applicant. A close examination of the transcript and the remarks on sentence establishes the following:-(1)When the sentencing judge made the comment “… I’m thinking of a non-parole period of a year dated from today’s date …”, he had not reached a firm conclusion.(2)At the time of that comment, he had not given consideration, as the Crown submitted, to either the sentencing statistics or the full import of the judgments in Mason (supra) or Tuncbilek (supra).(3)It was following upon consideration of those matters that the sentencing judge considered he would fall into error if he imposed a sentence as he earlier had been “thinking” of doing. That was no more than saying that such a sentence would, following consideration, be wrong in the sense that it would not be an appropriate or sufficient reflection of the seriousness of the offence.

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Citations

Azzi v R [2008] NSWCCA 169

Most Recent Citation

R v Raniga [2009] NSWCCA 35

Cases Citing This Decision

Towers v The King [2025] NSWCCA 142
Citation 1 (Para 70)

…the Henry guideline was applicable was well made. It is a relevant reference point in relation to sentencing for an offence against s 95: Azzi v R [2008] NSWCCA 169 at [37] applied in McDonald v R [2015] NSWCCA 280 at [92] per R A Hulme J (Basten JA and Adams J agreeing).…
R v Nasrallah [2022] NSWDC 54
Citation 2 (Para 47)

…46 NSWLR 346, which specifically relates to an offence of armed robbery but has many characteristics common to offences contrary to s 95. In Azzi v R [2008] NSWCCA 169 at [37], the court accepted that the guideline judgment in Henry is a “relevant reference point”, however in the circumstances of this case the guide…
R v Malupo [2021] NSWDC 586
Citation 3 (Para 32)

…46 NSWLR 346, which specifically relates to an offence of armed robbery but has many characteristics common to offences contrary to s 95. In Azzi v R [2008] NSWCCA 169 at [37], the court accepted that the guideline judgment in Henry is a “relevant reference point”, however in the circumstances of this case the guide…
R v Haggart and Brooks [2021] NSWDC 406
Citation 4 (Para 29)

…rse the offence committed by Haggart is not one of armed robbery, but the decision in Henry is still of relevance as a reference point. (See Azzi v R [2008] NSWCCA 169 ). As to the so-called Henry factors, I note the following:…
R v Kirk [2021] NSWDC 389
Citation 5 (Para 13)

…The court in Azzi v R [2008] NSWCCA 169 at [37] accepted that the guideline judgement of R v Henry (1999) 46 NSWLR 346 (“ Henry ”) is a “relevant reference point” in sentencing offences contrary to s 95 of the Crimes Act. However, because Henry considers a circumstance where a weapon is used, the use of the armed ro…
R v Mafi [2019] NSWDC 340
Citation 6 (Para 74)

…018 to date is to be taken into account: s24(a) of the Act, and that the Henry guideline judgment is a ‘relevant reference point’ as per Azzi v R [2008] NSWCCA 169 at 37. However, Henry , she submitted, involved the use of a weapon, and thus caution must be used when referring to the guideline in a sentencing exerci…
Kocyigit v R [2018] NSWCCA 279
Citation 7 (Para 29)

…r, as the Crown pointed out, the judgment in Henry remains a relevant reference point in relation to sentencing for an offence against s 95: Azzi v R [2008] NSWCCA 169 at [37]; McDonald v R [2015] NSWCCA 280 at [92]. In terms of the factors referred to by Spigelman CJ, those in (i), (iii), (iv), (v), (vi) and (vii)…
McDonald v R [2015] NSWCCA 280
Citation 8 (Para 92)

…ing for an offences of aggravated robbery contrary to s 95: R v Tortell; R v Tsegay [2007] NSWCCA 313 at [14] (McClellan CJ at CL). See also Azzi v R [2008] NSWCCA 169 at [37] where Hall J referred to Henry being a “relevant reference point” in relation to sentencing for an offence against s 95.…
R v Les Ferenc [2009] NSWCCA 126
Citation 9 (Para 22)

…ideline has general applicability, with appropriate adaptation, to offences of robbery with a maximum penalty the same as for armed robbery: Azzi v R [2008] NSWCCA 169. However, some caution is necessary because the guideline was concerned with an offence involving a weapon: R v Tortell and Tsegay [2007] NSWCCA 313.…
R v Raniga [2009] NSWCCA 35
Citation 10 (Para 1)

…t that this Court has accepted that the guideline judgment in R v Henry (supra) applies to offences under s95 which is the second count: see Azzi v R [2008] NSWCCA 169 and R v Tortell and Tsegay [2007] NSWCCA 313.…

See all citing cases →

Cases Cited

Kutchera v R [2007] NSWCCA 121
Citation 1 (Para 25)

…liance upon what was said to be an analogous error referred to by Rothman J (with whom James and Harrison JJ agreed) in relation to Kutchera v Regina [2007] NSWCCA 121 at [42] to [44]:- “42.To describe, as did his Honour, the suspension of the custodial sentence imposed as being ‘an erroneous exercise of my sentenci…
R v Tuncbilek [2004] NSWCCA 139
Citation 2 (Para 19)

…mits it should.’ 1.7The reference in the above passage to two cases was a reference to R v Daniel Mason [2000] NSWCCA 207 and R v Tuncbilek [2004] NSWCCA 139. Neither of these cases supported the proposition that a sentence of two years comprising a non-parole period of 12 months was manifestly inadequate in the unu…
R v Stanley [2003] NSWCCA 233
Citation 3 (Para 26)

…bbery offences which carry the same maximum penalty of 20 years: R v Murchie (1999) 108 A Crim R 482 at [20]; R v Stanley [2003] NSWCCA 233 at [13]-[14]. The sentencing judge was referred to the decision of R v Tuncbilek [2004] NSWCCA 139 at [19] and [20] in this regard (see ROS 16.2). 23.The sentencing judge’s atte…
Regina v Henry [2001] NSWCCA 521
Citation 4 (Para 26)

…ith intent to rob contrary to s.95(2)(a) of the Crimes Act 1900 is not expressly referred to in the guideline decision in Regina v Henry (1999) 46 NSWLR 34 [sic] , the maximum penalty of 20 years imprisonment is the same and it has been held that the decision in Henry is still of assistance with dealing with robbery off…
R v Mason [2000] NSWCCA 207
Citation 5 (Para 19)

…amely 21 July 2007, as the Crown submits it should.’ 1.7The reference in the above passage to two cases was a reference to R v Daniel Mason [2000] NSWCCA 207 and R v Tuncbilek [2004] NSWCCA 139. Neither of these cases supported the proposition that a sentence of two years comprising a non-parole period of 12 months…
R v Henry [1999] NSWCA 111
Citation 6 (Para 3)

…4] NSWCCA 139. Reference was made to this Court’s observations in that case in paragraph [20] to the fact that the Henry guideline ( Regina v Henry (1999) 46 NSWLR 346) may provide a reference point for judges sentencing robbery offenders who fall outside the guideline.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 5)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 25)
Law Enforcement (Power and Responsibilities) Act 2002 (NSW)
1 mention (from Para 5)