R v Alaragi - [2020] ACTSC 77

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Alaragi
Citation:	[2020] ACTSC 77
Hearing Date:	7 April 2020
DecisionDate:	7 April 2020
Before:	Mossop J
Decision:	See [37]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful act causing grievous bodily harm – common assault to be taken into account pursuant to Pt 4.4 of Crimes (Sentencing) Act 2005 (ACT) – substantial delay in sentencing the offender – limited criminal history – mental health conditions – resides in NSW – wholly suspended sentence
Legislation Cited:	Crimes Act 1900 (ACT), s 25 Crimes (Sentencing) Act 2005 (ACT), Pt 4.4 Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v Kemppainen [2020] ACTSC 69 R v Ngata [2020] ACTSC 9 Scook v The Queen [2008] WASCA 114; 185 A Crim R 164
Parties:	The Queen (Crown) Ali Alaragi (Offender)
Representation:	Counsel M Smith (Crown) P Edmonds (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) R & J Lawyers (Offender)
File Numbers:	SCC 239 of 2019 SCC 240 of 2019

MOSSOP J:

Introduction

On 30 September 2012 Ali Alaragi, who is also known as Sami Nadr, bit off the top of his housemate’s ear. He has pleaded guilty in the Supreme Court to the following offence: one count of causing grievous bodily harm by an unlawful act, contrary to s 25 of the Crimes Act 1900 (ACT), an offence which is punishable by imprisonment for five years (SSCAN 2020/14).

He has also asked that a charge of common assault be taken into account pursuant to part 4.4 of the Crimes (Sentencing) Act 2005 (ACT). The maximum penalty of imprisonment for a common assault is two years.

Facts

The offence occurred on 30 September 2012. At that time, the offender, the victim and two others (Mr Hatem and Mr Daghaghlah) resided together as housemates in Latham, ACT. The evening before the offender and the victim had been out together in Civic, and the offender had borrowed $70 from the victim.

At approximately 8.05pm on 30 September 2012, the four occupants of the house were at the shared residence. An argument broke out between the offender and the victim about the borrowed money. The victim said words to the effect of “you work in construction and get paid good and should take your own money when you go out”. The offender became visibly angry and started swearing at the victim, saying words to the effect of “fuck your sister”. The victim thought the offender was joking and told him to shut up.

The offender then suddenly ran at the victim and wrapped his arms around him and bit the top of his left ear. The victim felt immediate pain and tried, unsuccessfully, to push the offender off him. These facts give rise to the charge of causing grievous bodily harm.

Mr Hatem and Mr Daghaghlah, who had been present…

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 R v Alaragi

Details

AGLC: R v Alaragi [2020] ACTSC 77
Case: [2020] ACTSC 77
Decision Date: 7 April 2020

CaseChat Overview and Summary

The case of R v Alaragi involved a dispute over sentencing, where the offender was found guilty of causing grievous bodily harm and also charged with common assault. The matter was heard in the ACT Supreme Court, where the defendant was ultimately sentenced. The court had to decide on the appropriate sentence considering the delay in sentencing, the defendant's limited criminal history, his mental health conditions, and the fact that he resides in New South Wales.

The primary legal issue the court addressed was the applicability of Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) which allows for the consideration of common assault in determining the sentence for a more serious offence. The court also considered the impact of the substantial delay in sentencing, the defendant's mental health, and his limited criminal history. The offender's residence in New South Wales was another factor that needed to be taken into account during the sentencing process.

In determining the appropriate sentence, the court recognised the delay in sentencing as a mitigating factor but also emphasised the seriousness of the grievous bodily harm offence. The court found that the offender's limited criminal history and his mental health conditions warranted a lesser penalty. Given these factors, the court imposed a wholly suspended sentence, meaning that the offender would not serve any custodial time unless he reoffended within the specified period. This decision reflects a balanced approach, taking into account all relevant circumstances and the statutory provisions guiding the sentencing process.

Orders

Orders of the court

See [37]

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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