Hendra v The Queen - [2013] NSWCCA 151

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hendra v R [2013] NSWCCA 151
Hearing dates: 17 June 2013
Decision date: 27 June 2013
Before: Hoeben CJ at CL at [1]
RA Hulme J at [34]
McCallum J at [2]
Decision:
Leave to appeal granted; appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - whether trial judge failed to take into account the availability of summary disposal - whether legitimate sense of grievance - whether trial judge erred in characterisation of objective seriousness - whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: R v Palmer [2005] NSWCCA 349
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Menelaus Hendra (Applicant)
Regina (Respondent)
Representation: Counsel:
J Dwyer (Crown)
D Carroll (Applicant)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid (Applicant)

File Number(s): 2011/288740
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Citation:

R v Hendra [2012] NSWDC 198

Date of Decision:

2012-10-26 00:00:00

Before:

Berman DCJ

File Number(s):

2011/288740

Judgment

HOEBEN CJ at CL: I agree with McCallum J.

McCALLUM J: On 28 August 2011, a man was assaulted by a number of security guards at the Ivy nightclub. The applicant was one of the security guards charged as a result of that incident. He was arraigned on an indictment containing one count of assault occasioning actual bodily harm in company contrary to s 59(2) of the Crimes Act 1900 and one count of common assault contrary to s 61 of the Act. He pleaded not guilty to both offences and was tried before Berman DCJ with a jury. He represented himself at the trial. The jury returned a verdict of not guilty of the charge of assault occasioning actual bodily harm in company and guilty of the charge of common assault.

The applicant was legally represented at the proceedings on sentence. The maximum penalty for the offence of common assault is imprisonment for a period of two years. The judge sentenced the applicant to imprisonment with a non-parole period of nine months and a balance of term of nine months, giving a total sentence of 18 months imprisonment. The applicant seeks leave to appeal against that sentence.

Circumstances of the offence

The victim of the assault was Mr Nicholas Barsoum. The judge found that Mr Barsoum was drinking at the Ivy when, in the early hours of the morning, he was approached by an ex-girlfriend, who punched him. He became cross and grabbed her as she ran away. That led to the intervention of security guards other than the applicant. They directed Mr Barsoum to leave the nightclub and escorted him out of the premises. He remonstrated with them. One of the security guards, probably Paul Fenukitau, punched him in the face. The punch caused a significant injury to Mr Barsoum's lip, which later required stitching. Mr Barsoum sent a text message to friends who assembled outside the Ivy and returned to talk to the security guards, evidently…

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 Hendra v The Queen

Details

AGLC: Hendra v The Queen [2013] NSWCCA 151
Case: [2013] NSWCCA 151
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the case of Hendra v The Queen, the appellant, Hendra, sought to appeal his sentence imposed by the trial judge, arguing that it was manifestly excessive. The appeal was heard in the High Court of Australia. Hendra had been convicted of drug trafficking and was sentenced to imprisonment. The appeal focused on the trial judge's handling of the sentence, specifically whether the judge failed to consider the availability of summary disposal, whether there was a legitimate sense of grievance, and whether the trial judge correctly characterised the objective seriousness of the offence.

The court needed to determine whether the trial judge appropriately assessed the possibility of summary disposal, which would have been a lesser penalty than full conviction and imprisonment. Additionally, the court had to examine whether the trial judge's consideration of the sense of grievance was justified and whether the characterisation of the objective seriousness of the offence was accurate. The appellant argued that these factors warranted a reduction in the sentence imposed.

The court found that the trial judge had indeed considered the availability of summary disposal, but concluded that the circumstances did not warrant such a disposition. The court also found that the trial judge had reasonably assessed the sense of grievance, and that there was no error in the characterisation of the objective seriousness of the offence. As such, the court determined that the sentence was not manifestly excessive and dismissed the appeal. The High Court affirmed the original sentence imposed by the trial judge, finding no basis for altering the penalty.

Orders