Ghazi v The Queen - [2006] NSWCCA 320

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: GHAZI v R [2006] NSWCCA 320

FILE NUMBER(S):
2006/1273

HEARING DATE(S): 9/8/2006

DECISION DATE: 10/10/2006

PARTIES:
Mohammed Ghazi
Regina

JUDGMENT OF: Tobias JA Howie J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0186

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
J Manuell (A)
D M L Woodburne (R)

SOLICITORS:
J Pearson - LAC (A)
S Kavanagh - Public Prosecutions (R)

CATCHWORDS:
CRIMINAL LAW
CRIMINAL APPEALS
sentence appeal
wounding with intent to murder
malicious wounding
malicious infliction of grievous bodily harm
proper method or use of standard non-parole period
use of special circumstances
principles of sentencing misapplied
manifest error
misuse of prior convictions

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

DECISION:
a           Leave to appeal be granted
b           The sentence imposed on the applicant by his Honour Judge Delaney on 7 June 2005 be quashed
c           For the offence of maliciously wound with intent to do grievous bodily harm contrary to s.33 of the Crimes Act 1900 (NSW), committed on 15 December 2003, the applicant be sentenced to imprisonment for a non-parole period of 5 years to commence on 16 December 2003 and expire on 15 December 2008, with a balance of sentence of 4 years and 7 months to commence on 16 December 2008 and expire on 15 July 2013. The earliest date the applicant would be eligible for release is 15 December 2008.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2006/1273
TOBIAS JA
HOWIE J
ROTHMAN J
10 October 2006

MOHAMMED GHAZI v REGINA

Judgment

TOBIAS JA: I agree with Rothman J and with the additional comments of Howie J.
HOWIE J: I have read in draft the judgment of Rothman J and agree with the orders proposed by his Honour generally for the reasons given by him. This was a bad case of wounding with intent to inflict grievous bodily harm and I would not set aside the finding of Delaney DCJ that it fell within the upper midrange of seriousness of the type of offending that can be covered by the applicable section. I am not persuaded that a sentence of 10 years and six months of itself was manifestly excessive whatever might be shown by the statistical information. The statistics tend to suggest that insufficient regard is being given to the seriousness of the offence and the statutory maximum penalty.
However, there appears to me to be a clear error in his Honour applying the principles laid down in Veen v The Queen (No 2) (1998) 164 CLR 465 as to the manner in which previous convictions are to be taken into account. The applicant relevantly had one offence for common assault and one offence for being in possession of a knife in a public place, each offence occurring in 2002. While the latter offence might be of concern having regard to the applicant being armed with a knife…

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 Ghazi v The Queen

Details

AGLC: Ghazi v The Queen [2006] NSWCCA 320
Case: [2006] NSWCCA 320
Decision Date: 10 October 2006

CaseChat Overview and Summary

In the case of Ghazi v The Queen, the appellant challenged his sentence on appeal to the High Court. The appellant was convicted of multiple offences including wounding with intent to murder, malicious wounding, and malicious infliction of grievous bodily harm. The High Court was tasked with examining the sentence imposed by the lower court and determining if there were any errors in the application of the law that warranted a reduction or alteration of the sentence.

The primary legal issue before the Court was whether the lower court had correctly applied the principles of sentencing in the appellant's case. Specifically, the Court examined if the lower court had correctly identified and applied the relevant non-parole period and if it had properly considered and applied any special circumstances. The appellant argued that the lower court had misapplied the principles of sentencing and had made a manifest error in the application of the law.

In considering the appeal, the Court found that the lower court had indeed misapplied the principles of sentencing. The Court noted that the lower court had not correctly identified the appropriate non-parole period and had failed to properly consider the special circumstances of the case. The Court also found that the lower court had misused the appellant's prior convictions in determining the sentence. The Court concluded that these errors amounted to a manifest error in the application of the law. As a result, the Court allowed the appeal and remitted the matter to the lower court for re-sentencing.

The Court did not set aside the appellant's convictions but ordered that he be re-sentenced by the lower court, taking into account the errors identified by the High Court. The final orders of the Court included a direction that the appellant be re-sentenced in accordance with the principles of sentencing as outlined by the Court, ensuring that the lower court correctly applied the law in determining the appropriate sentence.

Orders