Director of Public Prosecutions v Eldayar - [2016] TASCCA 16

[2016] TASCCA 16

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Director of Public Prosecutions v Eldayar [2016] TASCCA 16

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  ELDAYAR, Elsawi Ahmed

FILE NO:  CCA 1838/2016
DELIVERED ON:  4 October 2016
DELIVERED AT:  Hobart
HEARING DATE:  27 September 2016
JUDGMENT OF:  Blow CJ, Tennent and Brett JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Causing grievous bodily harm – Sentence of 15 months' imprisonment with 6 months suspended and parole eligibility after 4½ months manifestly inadequate.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  A Shand
           Respondent:  R Mainwaring
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2016] TASCCA 16
Number of paragraphs: 20

Serial No 16/2016
File No CCA 1838/2016

DIRECTOR OF PUBLIC PROSECUTIONS v ELSAWI AHMED ELDAYAR

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
TENNENT J
BRETT J
4 October 2016

Orders of the Court

Appeal allowed.

Sentence of 15 months' imprisonment with effect from 1 January 2016 varied by increasing the head sentence from 15 months to 27 months.

Order suspending part of that sentence quashed.

Order of the learned sentencing judge as to parole quashed.

Respondent not to be eligible for parole until he has served half of the sentence of 27 months' imprisonment, and half of the suspended sentence of 12 months' imprisonment activated by the learned sentencing judge.

Serial No 16/2016
File No CCA 1838/2016

DIRECTOR OF PUBLIC PROSECUTIONS v ELSAWI AHMED ELDAYAR

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ

4 October 2016

In the early hours of the morning of 25 December 2015 the respondent, Elsawi Eldayar, committed the crime of causing grievous bodily harm by punching another man to the face, causing him to fall backwards and hit his head on the ground. He was charged with that crime, and pleaded guilty before Estcourt J, who sentenced him to 15 months' imprisonment, suspended 6 months of that sentence, and made an order that would result in him being eligible for parole after serving half of the operative part of that sentence. That is to say, he made an order to the effect that the respondent will be eligible for parole after serving 4½ months of the sentence. His Honour also made a probation order, to operate for 12 months from the respondent's release from prison, with special conditions that he must attend education and other programs as directed by the Court or a probation officer, and must undergo assessment and treatment for alcohol or drug dependency as directed by a probation officer. This is an appeal by the Director of Public Prosecutions against that sentence. The Director contends that the sentence was manifestly inadequate.
The victim of this crime was a man named Gift Ochaya. He was drinking with the respondent and others for some hours on the night…

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.

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Details

Case: [2016] TASCCA 16
Decision Date: 4 October 2016

CaseChat Overview and Summary

The Director of Public Prosecutions appealed to the Court of Criminal Appeal of New South Wales against the sentence imposed on the respondent, Mr Eldayar, who had pleaded guilty to causing grievous bodily harm. The DPP contended that the sentence of 15 months' imprisonment, with six months suspended and parole eligibility after 4½ months, was manifestly inadequate.

The central legal issue before the Court of Criminal Appeal was whether the sentencing judge had erred by imposing a sentence that was demonstrably too lenient, given the gravity of the offence and the circumstances surrounding it. This required the Court to consider the principles of sentencing for offences of causing grievous bodily harm and to assess whether the original sentence adequately reflected the seriousness of the respondent's conduct and the need for general and specific deterrence.

The Court found that the sentencing judge had failed to give sufficient weight to the objective seriousness of the offence and the need for general deterrence. The Court noted that the respondent's actions, which involved a violent assault, had resulted in significant harm to the victim. Applying the principles of sentencing, the Court determined that the original sentence did not adequately reflect the gravity of the offence and the need to deter others from similar conduct. Consequently, the Court allowed the appeal, increasing the head sentence to 27 months' imprisonment. The order suspending part of the sentence and the original parole eligibility date were quashed, with the respondent now to be eligible for parole after serving half of the total sentence, including the activated suspended portion.

Orders

Orders of the court

1. Appeal allowed.

2. Sentence of 15 months' imprisonment with effect from 1 January 2016 varied by increasing the head sentence from 15 months to 27 months.

3. Order suspending part of that sentence quashed.

4. Order of the learned sentencing judge as to parole quashed.

5. Respondent not to be eligible for parole until he has served half of the sentence of 27 months' imprisonment, and half of the suspended sentence of 12 months' imprisonment activated by the learned sentencing judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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