R v Alsharify

[2019] NSWDC 795

District Court

New South Wales

Medium Neutral Citation:

R v Alsharify [2019] NSWDC 795

Hearing dates:

14-16, 19-23, 26 August 2019 (Trial), 18 October 2019 (Sentence Hearing)

Date of orders:

08 November 2019

Decision date:

08 November 2019

Jurisdiction:

Criminal

Before:

Hatzistergos DCJ

Decision:

See [81]-[83]

Catchwords:

SENTENCING – Reckless wounding – Assessment of facts based on jury verdict – Use of sword – Whether moral culpability reduced due to Iraqi background – Extent of protective factors providing for good prospects of rehabilitation

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Dipangkear v R [2010] NSWCCA 156
Elsobky v R [2006] NSWCCA 168
R v Bednarz [2000] NSWCCA 553
R v West [2014] NSWCCA 250
Shaw v R [2008] NSWCCA 58

Texts Cited:

N/A

Category:

Sentence

Parties:

Regina (Crown)
Ahmed Alsharify (Offender)

Representation:

Counsel:

 

Ms E. Curran (Crown Solicitor Advocate)
Mr F. Santisi (For the Offender)

  Solicitors:
Director of Public Prosecutions
Abbas & Co Lawyers

File Number(s):

18/95967

Publication restriction:

N/A

Judgment

1. On 14 August 2019 the Offender was arraigned before me in relation to charges that on 26 March 2018 in Canley Vale:

1. he did wound Faysal Faysal with intent to cause grievous bodily harm contrary to section 33(1)(a) of the Crimes Act 1900 (NSW); and in the alternative that

2. he recklessly wounded Faysal Faysal contrary to section 35(4) of the Crimes Act 1900 (NSW).

2. Following an eight day trial the jury found the Offender not guilty of the principle charge, but guilty of the alternative.

3. The Offender is now to be sentenced in relation to the offence of which he has been found guilty and which carries a maximum penalty of 7 years imprisonment, and a standard non-parole period of 3 years.

4. First it is necessary for me to determine the facts on which the Offender is to be sentenced consistent with the jury’s verdict.

5. The Offender was in a relationship with Ms Eman Eliaali at the time of the offence. The Victim, Mr Faysal Faysal, was the ex-boyfriend of Ms Eliaali. There was an enforceable AVO, with Ms Eliaali as the person in need of protection. On the evening of 25 March 2019 the Victim stayed over at Ms Eliaadi’s unit at Canley Vale.

6. At about 11:00am on 26 March 2018, Ms Eliaali attended the Liverpool Police Station. She was accompanied by the Offender and complained about the Victim who was staying at her apartment at Canley Vale. Ms Elliaadi stated that that day she and the Offender “got back together.” [1] There was evidence from Ms Elliaadi that she reported to the police that the Victim had assaulted her the previous evening. No immediate action appears to have been taken by the police.

   1. T 204.47.

7. After spending the day together, the Offender drove Ms Eliaali and her three children aged 5, 7 and 9, back to her unit at Canley Vale and parked in the unit car park.

8. Ms Eliaali stated that the Victim and the Offender had not previously met although they…