R v ALZUAIN - [2013] SASCFC 45

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ALZUAIN
[2013] SASCFC 45
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Kelly)
31 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - AFFRAY, RIOT, UNLAWFUL ASSEMBLY AND LIKE OFFENCES - AFFRAY
Appeal against sentence - appellant pleaded guilty to the offence of affray, contrary to s 83C(1) of the Criminal Law Consolidation Act 1935 (SA) - appellant sentenced to a term of imprisonment for nine months - whether sentence was manifestly excessive - whether sentencing Judge gave full credit for the plea of guilty, and whether the failure to delineate the precise amount of credit was in error - whether sentencing Judge failed to take into account time spent in custody and on home detention bail - whether the sentence is disparate when compared to the sentence imposed on the accused's co-offender Mr Hopwood.
Held per Kelly J (Sulan and Vanstone JJ concurring): appeal dismissed - sentence was moderate and not manifestly excessive - sentence reflects that the sentencing Judge gave credit for the plea of guilty and took into account all relevant circumstances - difference in sentences imposed on appellant and Mr Hopwood may be attributed to their different roles in the offending and personal circumstances - in any event, there is no significant disparity between the sentences imposed on the appellant and Mr Hopwood.
Criminal Law Consolidation Act 1935 (SA) s 83C(1), referred to.
R v Varano (1989) 150 LSJS 140; R v Angus [2004] SASC 317, considered.

R v ALZUAIN
[2013] SASCFC 45
Court of Criminal Appeal: Sulan, Vanstone and Kelly JJ

SULAN J: I would dismiss the appeal. I agree with Kelly J.
VANSTONE J: I would dismiss the appeal. I agree with the reasons of Kelly J.
KELLY J:
This is an appeal against a sentence imposed in the District Court on 20 December 2012.
The appellant pleaded guilty to an offence of affray, contrary to s 83C(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for the offence of affray is three years imprisonment. The learned sentencing Judge imposed a term of imprisonment of nine months to commence on 20 December 2012. The Judge declined to suspend the sentence.
A Judge of this Court granted permission to appeal on 11 February 2013. The appellant’s central argument on appeal is that the sentence imposed is manifestly excessive. He contends that the sentence was excessive in that the Judge failed to take into account the time spent in custody and on home detention bail and to specify the extent of the discount for the plea of guilty. The appellant also complains that the…

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 ALZUAIN

Details

AGLC: R v Alzuain [2013] SASCFC 45
Case: [2013] SASCFC 45
Decision Date: 31 May 2013

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, who had pleaded guilty to affray contrary to section 83C(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant was sentenced to nine months imprisonment. The appeal was heard by Sulan, Vanstone and Kelly JJ of the Supreme Court of South Australia.

The central legal issues before the Court were whether the sentence imposed was manifestly excessive. Specifically, the appellant argued that the sentencing judge failed to give full and discernible credit for his guilty plea, did not adequately account for time spent in custody and on home detention bail, and that the sentence was disparate when compared to the sentence imposed on a co-offender, Mr Hopwood.

The Court, in dismissing the appeal, held that the sentence was moderate and not manifestly excessive. Kelly J, with whom Sulan and Vanstone JJ concurred, found that the sentencing judge had indeed given credit for the guilty plea and considered all relevant circumstances. The Court noted that any difference in sentences between the appellant and Mr Hopwood could be attributed to their differing roles in the offending and their individual personal circumstances, and concluded that there was no significant disparity.

Orders

Orders of the court

Held per Kelly J (Sulan and Vanstone JJ concurring): appeal dismissed - sentence was moderate and not manifestly excessive - sentence reflects that the sentencing Judge gave credit for the plea of guilty and took into account all relevant circumstances - difference in sentences imposed on appellant and Mr Hopwood may be attributed to their different roles in the offending and personal circumstances - in any event, there is no significant disparity between the sentences imposed on the appellant and Mr Hopwood.

Background

Background to the litigation

A Judge of this Court granted permission to appeal on 11 February 2013. The appellant’s central argument on appeal is that the sentence imposed is manifestly excessive. He contends that the sentence was excessive in that the Judge failed to take into account the time spent in custody and on home detention bail and to specify the extent of the discount for the plea of guilty. The appellant also complains that the sentence imposed on him is disparate when compared to the sentence imposed upon the co-offenders, in particular, the co-offender named Hopwood. Relevant background The appellant was born on 1 October 1987. At the time when he committed the offence of affray he was 22 years old. By the time he was sentenced he had turned 25. The events which gave rise to the charge of affray occurred in the Myer department store at Tea Tree Plaza on 29 July 2010. On 23 October 2010 the appellant was charged with the offence of aggravated causing harm with intent to cause harm. The prosecution later elected not to proceed with that charge. On 16 July 2012, the appellant and his co-offenders were charged with and pleaded guilty to the offence of affray. This appellant is not a first offender. He has previously been convicted for assault occasioning actual bodily harm. In July 2006, the appellant was found in possession of a loaded firearm in a public place and in possession of drugs for sale. The factual basis for sentence was the subject of a disputed facts hearing. In fact, the Judge heard extensive submissions and evidence about the precise events which occurred before and during the incident in the Myer department store. His Honour made a number of findings of fact. Those findings are not challenged on appeal and provide the basis for the summary set out below. On the day of the offence, the appellant and his co-offenders, together with others, approached the victim in the cosmetics section of the Myer store at Tea Tree Plaza shopping centre. The sole purpose of the approach to the victim was to use or threaten unlawful harm against him. The incident was not spontaneous. The Judge found that the appellant and the others entered the cosmetic section “with purpose”. The appellant was the first to strike the victim. He punched the victim and then held the victim while a co-offender, Mr Eliassi, hit him. A scuffle ensued; the victim fell to the ground. Another co-offender, Mr Hopwood, kicked the victim while he was on the floor. A third co-offender, Mr Moradi, encouraged the offending by his presence. Following the attack, the victim was conveyed to Modbury Hospital. He had a graze to his chin, tenderness behind his left ear and a wound to his right flank. The wound was sutured and the victim remained in hospital overnight for observation. He was discharged the next day. Having summarised the circumstances of the offending, the Judge then considered its objective seriousness. Although his Honour was unable to find that the offence was associated with gang conflict, he nevertheless considered that the conduct was “thuggish, gratuitous, cowardly and alarming”. Customers and staff in the store were frightened. In these circumstances his Honour emphasised the need for personal, and particularly general, deterrence.

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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