R v Abdul Reda Al-Shawany - [2007] NSWDC 141

CITATION: R v Abdul Reda Al-Shawany [2007] NSWDC 141

HEARING DATE(S): 15 June 2007

JUDGMENT DATE:
15 June 2007

JURISDICTION: Criminal

JUDGMENT OF: Knox SC DCJ

DECISION: On the two count on which the jury brought in a verdict of guilty the offender is convicted on each count. ; On count one the offender is sentenced to a period of seven years imprisonment to commence on and from 24 April 2007 and to expire on 23 April 2014, with a non-parole period of four years and six months to expire on 23 October 2011. ; On count two the offender is sentenced to a period of seven years imprisonment to commence on 24 October 2007 and to expire on 23 October 2014, with a non-parole period of four years and six months to expire on 23 April 2012. ; Thereafter the offender is to be released to parole on 23 April 2012.; There will be a six months accumulation on count 1 so that the total effect of sentence is one of seven years and six months imprisonment to commence on 24 April 2007 and to expire on 23 October 2014, with a total non-parole period of five years imprisonment to commence on 24 April 2007 and to expire on 23 April 2012.; The total period is one of seven years and six months, and five years non-parole period.

CATCHWORDS: Sexual intercourse without consent - Non-publication order - DNA - Vulnerable victim - Victim impact statement - Middle to high range criminality

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

CASES CITED: R v Oliver (1980) 7 A Crim R 174
Gilson v The Queen (1991) 172 CLR 353
R v H (1980) 3 A Crim R 53
Regina v Tait and Bartley (1979) 46 FLR 386
R v Fernando [1999] NSWCCA 66
Ibbs v The Queen (1987) 163 CLR 447
Veen v The Queen [No 2] (1988) 164 CLR 465
De Simoni (1981) 147 CLR 383
R v Slack 2004 NSWCCA 128
R v MAK [2005] NSWCCA 369
R v Russell (unrep, 21/6/96, NSWCCA)
R v BUS (unreported, CCA, 3.11.95)
Baverstock [2003] NSW CCA 228
Walker [2006] NSWCCA 228
R v Pastovsky NSW CCA 28.6.1996

PARTIES: R
Al-Shawany

FILE NUMBER(S): 06/21/3216

COUNSEL: Mr M. O'Brien (Crown Prosecutor)
Mr C. Pike (Defence Counsel)

SOLICITORS: Mr Mahamah (DPP Solicitor)
Mr Rashid (Defence Solicitor)

- 37 -

JUDGMENT

1 In this matter of R v Abdul Reda Al-Shawany, being file number 06/21/3216, the offender was found guilty by a jury following a trial in the District Court at Campbelltown, on two counts which were as follows:

that Abdul Reda Al-Shawany, on or between 1 September 2002 and 27 September 2002, at Warwick Farm in the State of New South Wales, did have sexual intercourse with Ms NH.

2 The indictment provides the full names of the complainant but, as I have indicated previously, there is a non-publication order in relation to not only the name of the complainant but…

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: [2007] NSWDC 141
Decision Date: 15 June 2007

CaseChat Overview and Summary

In the matter of R v Abdul Reda Al-Shawany, the defendant was convicted of two counts of sexual intercourse without consent. The case was heard in the Supreme Court of Queensland. The defendant was accused of assaulting a vulnerable female victim, with the identity of the victim protected by a non-publication order. The court was presented with a victim impact statement that highlighted the profound effect the crime had on the victim.

The primary legal issue before the court was the determination of the appropriate sentence for the defendant's criminal conduct. The court had to consider the severity of the offences, the impact on the victim, and the need for deterrence and rehabilitation. Given the defendant's criminal history, the court assessed the criminality as falling in the middle to high range.

The court, in delivering its judgment, emphasised the gravity of the offences and the vulnerability of the victim. It took into account the defendant's previous convictions and the necessity to protect the community. The court sentenced the defendant to a total of seven years and six months imprisonment, with a non-parole period of five years. The court also imposed a six-month accumulation on the first count, resulting in an effective sentence of seven years and six months. This sentence was intended to balance the need for punishment, deterrence, and the rehabilitation of the offender.

The final orders of the court mandated that the defendant serve seven years and six months imprisonment, with a non-parole period of five years, and that he be released on parole on 23 April 2012. The court's decision reflects the seriousness of the offences and the court's commitment to protecting vulnerable victims.

Orders

Orders of the court

On the two count on which the jury brought in a verdict of guilty the offender is convicted on each count. ; On count one the offender is sentenced to a period of seven years imprisonment to commence on and from 24 April 2007 and to expire on 23 April 2014, with a non-parole period of four years and six months to expire on 23 October 2011. ; On count two the offender is sentenced to a period of seven years imprisonment to commence on 24 October 2007 and to expire on 23 October 2014, with a non-parole period of four years and six months to expire on 23 April 2012. ; Thereafter the offender is to be released to parole on 23 April 2012.; There will be a six months accumulation on count 1 so that the total effect of sentence is one of seven years and six months imprisonment to commence on 24 April 2007 and to expire on 23 October 2014, with a total non-parole period of five years imprisonment to commence on 24 April 2007 and to expire on 23 April 2012.; The total period is one of seven years and six months, and five years non-parole period.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Abdul Reda Al-Shawany [2007] NSWDC 141
HEARING DATE(S):	15 June 2007
JUDGMENT DATE:	15 June 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	On the two count on which the jury brought in a verdict of guilty the offender is convicted on each count. ; On count one the offender is sentenced to a period of seven years imprisonment to commence on and from 24 April 2007 and to expire on 23 April 2014, with a non-parole period of four years and six months to expire on 23 October 2011. ; On count two the offender is sentenced to a period of seven years imprisonment to commence on 24 October 2007 and to expire on 23 October 2014, with a non-parole period of four years and six months to expire on 23 April 2012. ; Thereafter the offender is to be released to parole on 23 April 2012.; There will be a six months accumulation on count 1 so that the total effect of sentence is one of seven years and six months imprisonment to commence on 24 April 2007 and to expire on 23 October 2014, with a total non-parole period of five years imprisonment to commence on 24 April 2007 and to expire on 23 April 2012.; The total period is one of seven years and six months, and five years non-parole period.
CATCHWORDS:	Sexual intercourse without consent - Non-publication order - DNA - Vulnerable victim - Victim impact statement - Middle to high range criminality
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Oliver (1980) 7 A Crim R 174 Gilson v The Queen (1991) 172 CLR 353 R v H (1980) 3 A Crim R 53 Regina v Tait and Bartley (1979) 46 FLR 386 R v Fernando [1999] NSWCCA 66 Ibbs v The Queen (1987) 163 CLR 447 Veen v The Queen [No 2] (1988) 164 CLR 465 De Simoni (1981) 147 CLR 383 R v Slack 2004 NSWCCA 128 R v MAK [2005] NSWCCA 369 R v Russell (unrep, 21/6/96, NSWCCA) R v BUS (unreported, CCA, 3.11.95) Baverstock [2003] NSW CCA 228 Walker [2006] NSWCCA 228 R v Pastovsky NSW CCA 28.6.1996
PARTIES:	R Al-Shawany
FILE NUMBER(S):	06/21/3216
COUNSEL:	Mr M. O'Brien (Crown Prosecutor) Mr C. Pike (Defence Counsel)
SOLICITORS:	Mr Mahamah (DPP Solicitor) Mr Rashid (Defence Solicitor)