R v Al-Mdwali - [2022] ACTSC 238

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Al-Mdwali
Citation:	[2022] ACTSC 238
Hearing Date:	2 September 2022
DecisionDate:	2 September 2022
Before:	Mossop J
Decision:	See [40]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – threat to kill by joint commission – assault occasioning actual bodily harm – theft by joint commission – offences at low to mid-range of objective seriousness – offender not principally responsible for offences by joint commission – offending contributed to by drug use commencing after the murder of offender’s sister and offender’s resulting post-traumatic stress disorder – strong family support and prospects of rehabilitation – sentence of imprisonment imposed for threatening to kill – sentence suspended – fine imposed for assault – good behaviour order imposed for theft
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), s 10 Crimes Act 1900 (ACT), ss 24, 30 Criminal Code 2002 (ACT), ss 45A, 308
Cases Cited:	R v Al-Harazi (No 7) [2017] ACTSC 350
Parties:	ACT Director of Public Prosecutions (Crown) Faisal Al-Mdwali (Offender)
Representation:	Counsel M Thomas (Crown) R Rajalingam (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender)
File Numbers:	SCC 134 of 2022 SCC 135 of 2022

MOSSOP J:

Introduction

On 21 June 2022, the offender, Faisal Al-Mdwali, pleaded guilty to the following offences:

(a)One count of threatening to kill contrary to s 30 of the Crimes Act 1900 (ACT) (CC2021/10326). This is an offence of joint commission by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment.
(b)One count of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act (CC2021/10329). The maximum penalty is five years’ imprisonment.
(c)One count of joint commission theft contrary to s 308 of the Criminal Code by virtue of s 45A of the Criminal Code (CC2022/2491). The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.

Facts

The facts are agreed and are in summary as follows.

On the afternoon of Saturday, 8 May 2021 the victim who I will refer to as KD received a phone call from the offender, who he lived with, saying that their house had been “run through”. KD returned home and found the offender, Ibrahim Kaddour who he also lived with and an unidentified male (together, the co-offenders) in the living room.

The men told KD to sit down on the lounge and he did. They yelled at him saying “our house has been broken into because of you”. Mr Kaddour showed KD a note that the alleged burglars had left. It was on the same sort of A4 grid paper that Mr Kaddour kept in his work vehicle and KD immediately thought the males had falsified a story in order to rob him.

Mr Kaddour approached KD and hit him on the jaw with a clenched fist. The offender then did the same thing, hitting the…

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.

Keep reading for free

Create a free CaseChat account to read R v Al-Mdwali and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] ACTSC 238
Decision Date: 2 September 2022

CaseChat Overview and Summary

The respondent, Al-Mdwali, was found guilty of assault occasioning actual bodily harm, theft, and making a threat to kill by joint commission. He appealed against the sentence imposed by the Magistrates' Court of Victoria. The Court of Appeal was tasked with determining whether the sentence imposed was appropriate in light of the circumstances of the offences and the respondent's background. The appeal hinged on whether the sentence imposed was manifestly excessive or inadequate in all of the circumstances, and whether the primary judge erred in failing to give adequate weight to the respondent's prospects of rehabilitation and the impact of drug use and post-traumatic stress disorder on his offending behaviour.

The court considered the principles of sentencing in joint commission cases and the need to ensure that the sentence imposed was proportionate to the offender's degree of responsibility and culpability. The court noted that the offences committed by the respondent were at the low to mid-range of objective seriousness, and that he was not the principal actor in the offences. The court also considered the impact of drug use and post-traumatic stress disorder on the respondent's offending behaviour, as well as his strong family support and prospects of rehabilitation. The court held that the sentence imposed was not manifestly excessive or inadequate, and that the primary judge had properly considered the relevant factors in arriving at the sentence.

The appeal was dismissed, and the orders made by the Magistrates' Court of Victoria were affirmed. The sentence of imprisonment for the threat to kill was suspended, a fine was imposed for the assault, and a good behaviour order was imposed for the theft. The court noted that the sentence imposed reflected the low to mid-range of objective seriousness of the offences, the respondent's degree of responsibility and culpability, and his prospects of rehabilitation. The court also noted that the sentence imposed was proportionate to the offending behaviour and took into account the impact of drug use and post-traumatic stress disorder on the respondent's behaviour.

Orders

Orders of the court

See [40]

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.