R v Ali

Case [2018] QCA 212 14 September 2018

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Ali [2018] QCA 212

PARTIES:

R
v
ALI, Muhumed Samow
(applicant)

FILE NO/S:

CA No 194 of 2017
SC No 344 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 29 August 2017 (Atkinson J)

DELIVERED ON:

14 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2018

JUDGES:

Fraser and Gotterson JJA and Burns J

ORDERS:

1.   Grant leave to appeal;

2.   The appeal be allowed in part;

3.   Set aside the sentence imposed for the offence of going armed in public so as to cause fear and substitute a sentence of two years imprisonment;

4.   The sentences and orders otherwise made at first instance remain unaffected.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial of attempted murder – where the sentence for attempted murder was 10 years imprisonment with an automatic serious violent offence declaration – where the applicant pleaded guilty at the outset of the trial to dangerous operation of a motor vehicle, common assault and going armed in public so as to cause fear, for which the sentences were two years imprisonment, three years imprisonment and three years imprisonment, respectively – where the applicant drove his vehicle into the complainant’s street and deliberately collided with her vehicle – where the applicant retrieved a machete from his vehicle, chased the complainant and struck her between five and seven times with the machete – where the applicant was prevented from further attacking the complainant by the intervention of the complainant’s neighbours – where the sentencing judge found that the applicant held an intention to kill at all times, from when he drove into the complainant’s street to when he struck the final blow – whether the sentencing judge wrongly found that the applicant held an intention to kill at all times – whether the applicant’s sentence is manifestly excessive

Corrective Services Act 2006 (Qld), s 180, s 182
Criminal Code (Qld), s 69(1), s 538
Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 12A, s 161A, s 161B

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited
R v Dwyer[2008] QCA 117, cited
R v Hicks [2017] QCA 14, considered
R v Jurcik[2001] QCA 390, considered
R v Mallie; ex parte A-G (Qld) [2009] QCA 109, considered
R v Reeves[2001] QCA 91, cited
R v Rochester; ex parte A-G (Qld)[2003] QCA 326, considered
R v Sauvao[2006] QCA 331, considered
R v Seijbel-Chocmingkwan[2014] QCA 119, considered
R v Tevita[2006] QCA 131, cited
R v Williams [2015] QCA 276, considered
R v Witchard & Ors; ex parte A-G (Qld) [2005] 1 Qd R 428; [2004] QCA 429, cited

COUNSEL:

L Ackermann for…

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 Ali

Details

AGLC: R v Ali [2018] QCA 212
Case: [2018] QCA 212
Decision Date: 14 September 2018

CaseChat Overview and Summary

The matter before the court was an appeal by the applicant against his sentence for attempted murder, which the applicant argued was manifestly excessive. The applicant had been convicted following a trial of attempted murder, and was sentenced to 10 years imprisonment with an automatic serious violent offence declaration. During the trial, the applicant had pleaded guilty to dangerous operation of a motor vehicle, common assault and going armed in public so as to cause fear. The applicant was found to have deliberately driven his vehicle into the complainant’s street and collided with her vehicle, before retrieving a machete and striking the complainant multiple times. The sentencing judge found that the applicant held an intention to kill at all times during the attack.

The central legal issues before the court were whether the sentencing judge had wrongly found that the applicant held an intention to kill at all times, and whether the applicant’s sentence was manifestly excessive. The court considered the sentencing principles and the appropriate range of sentences for the offences committed by the applicant. The court found that while the sentencing judge was correct to find that the applicant held an intention to kill, the sentence imposed for the offence of going armed in public so as to cause fear was excessive.

The court allowed the appeal in part and set aside the sentence imposed for the offence of going armed in public so as to cause fear, substituting a sentence of two years imprisonment. The sentences and orders otherwise made at first instance remained unaffected. The court held that the sentence for going armed in public so as to cause fear was excessive, given the applicant’s other convictions and the circumstances of the attempted murder. However, the court found that the sentence for attempted murder was within the appropriate range of sentences for that offence. The applicant was granted leave to appeal and the appeal was allowed in part, with the sentence for going armed in public so as to cause fear being substituted for a sentence of two years imprisonment.

Orders

Orders of the court

1. Grant leave to appeal;

2. The appeal be allowed in part;

3. Set aside the sentence imposed for the offence of going armed in public so as to cause fear and substitute a sentence of two years imprisonment;

4. The sentences and orders otherwise made at first instance remain unaffected.

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.

Citations

AGLC Citation

R v Ali [2018] QCA 212

Most Recent Citation

R v Lan [2019] QCA 76

Cases citing this decision · 7 of 7 shown

R v BEB
[2023] QCA 105 Para 33

…Fourth, in relation to the offence of attempted murder: (a)General principles governing such sentences were stated by Burns J in R v Ali [2018] QCA 212. In that decision, Burns J (with whom Fraser and Gotterson JJA agreed) observed at [27] (emphasis added and footnotes in original): “This Court has observed on a…
R v Fisher
[2022] QSC 189 Para 3

…v Smith [2022] QCA 89, [87]. [24] Penalties and Sentences Act 1992 (Qld), s 161B; Corrective Services Act 2006 (Qld), s 182. [25] R v Ali [2018] QCA 212, [28]. Personal factors…
R v Smith
[2022] QCA 89 Para 2

…igation because that is the only way of reflecting those factors so as to arrive at a sentence that is just in all of the circumstances.” [26][2018] QCA 212 at [28], Fraser and Gotterson JJA agreeing.…
R v DBY
[2022] QCA 20 Para 14

…er or lower limits of the exercise of a proper sentencing discretion. In the end, each case must be decided upon its own facts and circumstances. [36][2018] QCA 212. [37][2005] QCA 132. [38][2019] QCA 76. [39][2014] QCA 119. [40][2019] QCA 116.…
R v Sprott; Ex parte
[2019] QCA 116 Para 8

….[2] The Attorney-General now appeals against these two sentences on the single ground that the sentences were manifestly inadequate. [1] R v Ali [2018] QCA 212 at [27] per Burns J. [2]As well as the two counts of attempted murder, the respondent pleaded guilty to one count of burglary with circumstances of aggra…
R v Heke
[2019] QCA 93 Para 3

…mitigation because that is the only way of reflecting those factors so as to arrive at a sentence that is just in all of the circumstances.” [17][2018] QCA 212 at [28].…
R v Lan
[2019] QCA 76 Para 27

…iscretion and supported by authorities, including R v Sauvao ,[5] R v Ali ,[6] R v Seijbel-Chocmingkwan [7] and R v Kerwin .[8] [5][2006] QCA 331. [6][2018] QCA 212. [7][2014] QCA 119. [8][2005] QCA 259.…

View all 7 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Williams
[2015] QCA 276 Para 3

…e Order, the appellant went to her place of work and stabbed her in the chest and abdomen causing life-threatening injuries). [22][2009] QCA 109. [23][2015] QCA 276. [24][2017] QCA 14. [25][2006] QCA 331. [26][2001] QCA 390. [27][2014] QCA 119. [28][2003] QCA 326.…
R v Seijbel-Chocmingkwan
[2014] QCA 119 Para 3

…nd abdomen causing life-threatening injuries). [22][2009] QCA 109. [23][2015] QCA 276. [24][2017] QCA 14. [25][2006] QCA 331. [26][2001] QCA 390. [27][2014] QCA 119. [28][2003] QCA 326.…
R v Mallie; ex parte A-G (Qld)
[2009] QCA 109 Para 3

…f a Domestic Violence Order, the appellant went to her place of work and stabbed her in the chest and abdomen causing life-threatening injuries). [22][2009] QCA 109. [23][2015] QCA 276. [24][2017] QCA 14. [25][2006] QCA 331. [26][2001] QCA 390. [27][2014] QCA 119. [28][2003] QCA 326.…
R v Dwyer
[2008] QCA 117 Para 5

…ation because that is the only way of reflecting those factors so as to arrive at a sentence that is just in all of the circumstances. [32] R v Dwyer [2008] QCA 117, [37] per Keane JA.…
R v Sauvao
[2006] QCA 331 Para 3

…e of work and stabbed her in the chest and abdomen causing life-threatening injuries). [22][2009] QCA 109. [23][2015] QCA 276. [24][2017] QCA 14. [25][2006] QCA 331. [26][2001] QCA 390. [27][2014] QCA 119. [28][2003] QCA 326.…
R v Tevita
[2006] QCA 131 Para 4

…d in R v Witchard & Ors; ex parte A-G (Qld) [2005] 1 Qd R 428; [2004] QCA 429. [31]To paraphrase what was said by the Court in R v Tevita [2006] QCA 131, [10].…
R v Witchard
[2004] QCA 429 Para 4

…ndependent of the person’s will”, which provision is discussed and explained in R v Witchard & Ors; ex parte A-G (Qld) [2005] 1 Qd R 428; [2004] QCA 429. [31]To paraphrase what was said by the Court in R v Tevita [2006] QCA 131, [10].…
R v Rochester; ex parte A-G (Qld)
[2003] QCA 326 Para 3

…ife-threatening injuries). [22][2009] QCA 109. [23][2015] QCA 276. [24][2017] QCA 14. [25][2006] QCA 331. [26][2001] QCA 390. [27][2014] QCA 119. [28][2003] QCA 326.…
Cheung v The Queen
[2001] HCA 67

…(Qld), s 132C Penalties and Sentences Act 1992 (Qld), s 12A, s 161A, s 161B Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited R v Dwyer [2008] QCA 117 , cited R v Hicks [2017] QCA 14 , considered R v Jurcik [2001] QCA 390 , considered R v Mallie; ex parte A-G (Qld) [2009] QCA 109 , considered R v Reeves…
R v Jurcik
[2001] QCA 390 Para 3

…d her in the chest and abdomen causing life-threatening injuries). [22][2009] QCA 109. [23][2015] QCA 276. [24][2017] QCA 14. [25][2006] QCA 331. [26][2001] QCA 390. [27][2014] QCA 119. [28][2003] QCA 326.…
R v Reeves
[2001] QCA 91 Para 4

…ct by the offender’s acts.[31] It follows that sentences above and below that general range may be called for in appropriate cases. [29] R v Reeves [2001] QCA 91, p 5; R v Rochester; ex parte A-G (Qld) [2003] QCA 326, [31]; R v Sauvao [2006] QCA 331, p 4. [30]As to which, see s 538 of the Criminal Code (Qld) whi…
QCA 207, R v M’Bie
[2017] QCA 14 Para 3

…nt went to her place of work and stabbed her in the chest and abdomen causing life-threatening injuries). [22][2009] QCA 109. [23][2015] QCA 276. [24][2017] QCA 14. [25][2006] QCA 331. [26][2001] QCA 390. [27][2014] QCA 119. [28][2003] QCA 326.…

Legislation cited in this decision · 3

Corrective Services Act 2006 (Qld)
180 2 mentions (from Para 7)
Evidence Act 1977 (Qld)
132C 2 mentions (from Para 16)
Penalties and Sentences Act 1992 (Qld)
12A 2 mentions (from Para 4)

CITATION:	R v Ali [2018] QCA 212
PARTIES:	R v ALI, Muhumed Samow (applicant)
FILE NO/S:	CA No 194 of 2017 SC No 344 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 29 August 2017 (Atkinson J)
DELIVERED ON:	14 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2018
JUDGES:	Fraser and Gotterson JJA and Burns J
ORDERS:	1. Grant leave to appeal; 2. The appeal be allowed in part; 3. Set aside the sentence imposed for the offence of going armed in public so as to cause fear and substitute a sentence of two years imprisonment; 4. The sentences and orders otherwise made at first instance remain unaffected.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial of attempted murder – where the sentence for attempted murder was 10 years imprisonment with an automatic serious violent offence declaration – where the applicant pleaded guilty at the outset of the trial to dangerous operation of a motor vehicle, common assault and going armed in public so as to cause fear, for which the sentences were two years imprisonment, three years imprisonment and three years imprisonment, respectively – where the applicant drove his vehicle into the complainant’s street and deliberately collided with her vehicle – where the applicant retrieved a machete from his vehicle, chased the complainant and struck her between five and seven times with the machete – where the applicant was prevented from further attacking the complainant by the intervention of the complainant’s neighbours – where the sentencing judge found that the applicant held an intention to kill at all times, from when he drove into the complainant’s street to when he struck the final blow – whether the sentencing judge wrongly found that the applicant held an intention to kill at all times – whether the applicant’s sentence is manifestly excessive Corrective Services Act 2006 (Qld), s 180, s 182 Criminal Code (Qld), s 69(1), s 538 Evidence Act 1977 (Qld), s 132C Penalties and Sentences Act 1992 (Qld), s 12A, s 161A, s 161B Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited R v Dwyer[2008] QCA 117, cited R v Hicks [2017] QCA 14, considered R v Jurcik[2001] QCA 390, considered R v Mallie; ex parte A-G (Qld) [2009] QCA 109, considered R v Reeves[2001] QCA 91, cited R v Rochester; ex parte A-G (Qld)[2003] QCA 326, considered R v Sauvao[2006] QCA 331, considered R v Seijbel-Chocmingkwan[2014] QCA 119, considered R v Tevita[2006] QCA 131, cited R v Williams [2015] QCA 276, considered R v Witchard & Ors; ex parte A-G (Qld) [2005] 1 Qd R 428; [2004] QCA 429, cited
COUNSEL:	L Ackermann for…