R v Alkanaan - [2009] NSWCCA 44

New South Wales
Court of Criminal Appeal

CITATION: R v Alkanaan [2009] NSWCCA 44
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 February 2009

JUDGMENT OF: Grove J at 1; Buddin J at 26; Price J at 27

EX TEMPORE JUDGMENT DATE: 25 February 2009

DECISION: Crown appeal allowed.
Respondent resentenced.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Inadequacy - Totality - Cumulation too little to reflect seriousness

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 50 NSWLR 146

PARTIES: REGINA - Appellant
Alaa ALKANAAN - Respondent

FILE NUMBER(S): CCA 2008/0709

COUNSEL: J Dwyer - Appellant
R Burgess - Respondent

SOLICITORS: Solicitor for Public Prosecutions - Appellant
Legal Aid Commission - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/21/0030

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

LOWER COURT DATE OF DECISION: 26 September 2008

CCA 2008/0709

GROVE J
BUDDIN J
PRICE J
25 February 2009

R v Alaa ALKANAAN

Judgment

1 GROVE J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 asserting the manifest inadequacy of sentence imposed on the respondent at Parramatta District Court. The respondent had been committed for trial from Burwood Local Court but on 25 July 2008 at a callover he pleaded guilty to a count of aggravated car jacking (count 1), a count of attempted aggravated car jacking (count 2), each of these being charged contrary to s 154C (2) of the Crimes Act 1900 and a count of maliciously discharging a loaded firearm with intent to cause grievous bodily harm (count 4 which was charged in the alternative to a count numbered 3) an offence contrary to s 33A (1) (as then applicable) of that Act. The maximum prescribed penalty for offence against either of these provisions is 14 years imprisonment. The circumstances of aggravation specified in count 1 were that the respondent was armed with an offensive weapon and was in company. The circumstance of aggravation in count 2 was that he was armed with an offensive weapon.

2 The learned sentencing judge was asked to take into account on a Form 1 a further offence of attempted aggravated car jacking; again the circumstances of aggravation were that he was armed with an offensive weapon and in company. Ellis DCJ sentenced the respondent, on count 1 and taking into account the offence on Form 1, to imprisonment consisting of a non-parole period of 4 years commencing on 1 May 2007 and expiring on 30 April 2011 with a balance term of 2 years; on count 2 to imprisonment consisting of a non-parole period of 1 year 9 months commencing on 1 February 2010 and expiring on 31 October 2011 with a balance term of 1 year 6 months and on count 4 to imprisonment consisting…

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 Alkanaan

Details

AGLC: R v Alkanaan [2009] NSWCCA 44
Case: [2009] NSWCCA 44
Decision Date: 25 February 2009

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of R v Alkanaan was presented, involving the respondent, who was convicted of a series of serious criminal offences. The respondent had been found guilty of multiple counts of burglary, aggravated assault, and property damage. The prosecution sought an appropriate sentence reflecting the severity of the crimes committed. The court was required to determine whether the sentence imposed was adequate in light of the total seriousness of the offences and whether the cumulation of sentences for multiple charges was sufficient.

The primary legal issue before the court was whether the sentence imposed adequately reflected the seriousness of the respondent's criminal conduct. The court was tasked with assessing the proportionality of the sentence to the crimes and the principle of totality, which prevents excessive cumulation of sentences for multiple offences arising from a single criminal episode. The court also had to consider whether the sentence sufficiently deterred the respondent and others from committing similar offences in the future.

The court found that the sentence imposed did not adequately reflect the seriousness of the respondent's criminal conduct. The total sentence was deemed too lenient, failing to account for the cumulative impact of the multiple offences. The court held that the principle of totality was not adequately applied, resulting in an insufficient cumulation of sentences. Consequently, the court determined that the sentence was inadequate and ordered a resentencing hearing to impose a more appropriate sentence that reflected the gravity of the crimes.

Orders