R v Almoustafa, Ali - [2009] NSWDC 217

CITATION: R v Almoustafa, Ali [2009] NSWDC 217

HEARING DATE(S): 15/01/2009 and 30/01/2009

JUDGMENT DATE:
27 February 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted. Sentenced to 3 years and 9 months imprisonment with a non-parole period of 2 years and 8 months.

CATCHWORDS: Criminal Law - Sentencing - Robbery - Larceny of good from vehicle on Form 1 - Victim sales staff of liquor outlet - threat of concealed weapon - other threats - robber present for extended period - personal threat to victim to pursue him if matter reported to police - damage to vehicle in course of larceny - on bond at time of offending.

CASES CITED: R v Cuthbert (1967) 2 NSWR 329
R v Rushby (1977) NSWLR 597
R v Hayes [1984] 1 NSWLR 740
R v Rause unreported NSWCCA 8 August 1992

PARTIES: Regina
Ali Almoustafa

FILE NUMBER(S): 2008/000011785

SOLICITORS: Crown: Ms Barnes
Defence: Ms Darcey

JUDGMENT
1. Between March 2004 and March 2005 Ali Almoustafa served a non-parole period of twelve months imprisonment. He celebrated, if that is the right word, his twenty-third birthday in prison. At 1.55 on Sunday 6 April 2008, that is three years after his release from prison, he was released from police custody at Newtown Police Station on bail.

2. If the doctrine of general and personal deterrence was ever going to work its magic on Ali Almoustafa surely it would have done so on 6 April 2008 at 1.55pm. Newtown and Enmore are adjoining suburbs in Sydney. The most direct route from one to the other is along Enmore Road. Enmore Fine Wines operates at 141 Enmore Road, Enmore. Twenty-five minutes after signing his bail papers and being released Almoustafa entered Enmore Fine Wines with serious criminal conduct on his mind. In a one on one robbery that must have taken at least twenty minutes to complete, he departed Enmore Fine Wines with $1,500 of its stock and $1,900 of its cash.

3. Police were notified. They were at his home by three o’clock. He was not there. By 4pm he was thieving items from a Mazda 626. It is likely he was also prepared to steal the Mazda for a house key had been jammed into the car’s ignition. By 4.45pm he was back in police custody. His larceny of items from the vehicle is a charge he also seeks to have dealt with on a Form 1.

4. Today he is to be held accountable for his criminal conduct. As sentencing judge it falls to me to resolve a number of competing tensions. As I strive to determine the appropriate sentence for this offence committed before this court by this offender harming the victim that he harmed in this community. My initial task requires an assessment of the objective criminality of the offence. I will need to have regard to matters personal to him, that is subjective matters. The starting point for such assessments requires me to make findings of fact from evidence…

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 Almoustafa, Ali

Details

AGLC: R v Almoustafa, Ali [2009] NSWDC 217
Case: [2009] NSWDC 217
Decision Date: 27 February 2009

CaseChat Overview and Summary

The appellant was convicted of robbery and larceny of goods from a vehicle on Form 1, with the victim being sales staff of a liquor outlet. The offence occurred when the appellant threatened the victim with a concealed weapon, made other threats, and remained present for an extended period. Additionally, the appellant threatened to pursue the victim if the matter was reported to the police and caused damage to the vehicle during the larceny. The appellant was on bond at the time of the offending.

The legal issues before the court included the appropriate weight to be given to various aggravating and mitigating factors in sentencing, and the necessity of a non-parole period. The court needed to consider the severity of the crime, the appellant's criminal history, and the circumstances of the offence in determining the sentence.

The court emphasised the seriousness of the robbery, noting the threat of a concealed weapon and the appellant's presence for an extended period. It also considered the appellant's criminal history, which included breaches of parole and multiple previous convictions. However, the court also recognised the appellant's efforts to address his substance abuse issues and his remorse. Ultimately, the court sentenced the appellant to three years and nine months imprisonment, with a non-parole period of two years and eight months, balancing the aggravating and mitigating factors.

Orders

Orders of the court

Convicted. Sentenced to 3 years and 9 months imprisonment with a non-parole period of 2 years and 8 months.

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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CITATION:	R v Almoustafa, Ali [2009] NSWDC 217
HEARING DATE(S):	15/01/2009 and 30/01/2009
JUDGMENT DATE:	27 February 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentenced to 3 years and 9 months imprisonment with a non-parole period of 2 years and 8 months.
CATCHWORDS:	Criminal Law - Sentencing - Robbery - Larceny of good from vehicle on Form 1 - Victim sales staff of liquor outlet - threat of concealed weapon - other threats - robber present for extended period - personal threat to victim to pursue him if matter reported to police - damage to vehicle in course of larceny - on bond at time of offending.
CASES CITED:	R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Rause unreported NSWCCA 8 August 1992
PARTIES:	Regina Ali Almoustafa
FILE NUMBER(S):	2008/000011785
SOLICITORS:	Crown: Ms Barnes Defence: Ms Darcey