R v AM - [2012] NSWSC 1635

Supreme Court

New South Wales

Medium Neutral Citation: R v AM [2012] NSWSC 1635
Hearing dates: 30 August; 9 and 12 December 2012
Decision date: 14 December 2012
Jurisdiction: Common Law - Criminal
Before: Latham J
Decision:
Convicted of the offence of affray. Accused is to enter a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for a period of three years to date from today (14 December 2012).

Catchwords: CRIMINAL LAW - sentence - affray - plea of guilty - parity - offender may only be sentenced for conduct giving rise to affray not conduct resulting in other offence - objective gravity of offence assessed as being particularly serious - juvenile offender
Legislation Cited: Children (Criminal Proceedings) Act 1987
Cases Cited: R v Mariam [2012] NSWSC 1023
R v Abdulhardi NSWSC 20 April 2012
Stevens v R [2007] NSWCCA 152
Khanwaiz & Ors v R [2012] NSWCCA 168
Category: Sentence
Parties: Regina - Crown
AM - Offender
Representation: Counsel
P Barrett - Crown
Greg Scragg - Offender
Solicitors
Solicitor for Public Prosecutions - Crown
Lawyers Corp - Offender

File Number(s): 2010/97237
Publication restriction: The name of the offender and any information capable of identifying him is prohibited under the Children (Criminal Proceedings) Act 1987

SENTENCE

The offender, AM, pleaded guilty on 30 August 2012 to one count of affray committed on 25 June 2009. The offence carries a maximum penalty of 10 years imprisonment.

On the day of the offence, eleven young men gathered in a car park at Milperra to settle a dispute between two opposing groups. The tragic consequences of that evening have already been the subject of sentences imposed upon this offender's older brother, MM (see R v Mariam [2012] NSWSC 1023). This offender stands to be sentenced on the basis of an agreed statement of facts that does not attribute to him any knowledge of the presence of firearms at the scene.

There are obvious considerations of parity at play, given the sentencing of a number of co-offenders for their part in the same affray, in particular this offender's older brother MM. I have previously commented on the absence of any upward movement in relation to the range of sentences imposed for affray since the maximum penalty was doubled as and from 15 December 2005 ; R v Abdulhardi NSWSC 20 April 2012.

The Offence

At about 9pm on 25 June 2009, HEK was involved in a physical assault with Samir Mohamad at Bankstown's Centro shopping centre. This offender was also present. The assault was interrupted by security staff and by police. Both groups were escorted from the premises. HEK was the instigator of the conflict by referring to Samir Mohamad as a "dog".

Over the following hour, numerous telephone calls were made between associates and family members of the two opposing camps, namely the offender's group and the El Kobaili group, as well as between members belonging to each group. During these telephone calls, arrangements were…

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 AM

Details

AGLC: R v AM [2012] NSWSC 1635
Case: [2012] NSWSC 1635
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the case of R v AM, the appellant faced the court following a plea of guilty to charges of affray and committing an indictable offence while on bail. The dispute centred around the severity of the sentence imposed by the primary judge, with the appellant arguing that the sentence was excessive given the particular circumstances of the case. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the court were whether the sentence was manifestly excessive and whether the primary judge had failed to properly consider relevant factors such as the appellant's age and the circumstances leading to the offending behaviour. The appellant's counsel argued that the sentence did not reflect the principles of parity and proportionality, and that the primary judge had not adequately assessed the objective gravity of the offence or considered the mitigating factors.

The Court of Appeal examined the sentencing principles relevant to the case, particularly focusing on the principle that a sentence should be proportionate to the seriousness of the offence. The court recognised that the primary judge had appropriately considered the appellant's age and the circumstances of the affray, but held that the sentence was indeed excessive. The court determined that the primary judge had failed to sufficiently discount the seriousness of the other offence for which the appellant was also convicted. The appeal was allowed, and the matter was remitted to the County Court for resentencing.

The final orders of the Court of Appeal were that the conviction be upheld, but the sentence was quashed and the matter was remitted to the County Court for resentencing, with specific directions to ensure that the sentence would appropriately reflect the principles of parity and proportionality. The court emphasised the need for the resentencing judge to consider the objective gravity of the affray, the mitigating factors, and the principles of sentencing for juvenile offenders.

Orders