R v Ammar Elrifai - [2002] NSWCCA 496

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Ammar Elrifai [2002] NSWCCA 496

FILE NUMBER(S):
60004/02

HEARING DATE(S): 09/12/02

JUDGMENT DATE: 09/12/2002

PARTIES:
Regina
Ammar Elrifai (Applicant)

JUDGMENT OF: Bell J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/0226

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

COUNSEL:
GIO Rowling (Crown)
HK Dhanji (Applicant)

SOLICITORS:
SE O'Connor (Crown)
DJ Humphreys (Applicant)

CATCHWORDS:
Severity appeal - plea of guilty to offence of aggravated dangerous driving occasioning death - circumstance of aggravation being escaping from a police pursuit - impact of R v Whyte upon R v Jurisic - applicant suffered severe injuries - deceased was his best friend.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60004/02
BELL J
BUDDIN J
MONDAY 9 DECEMBER 2002

REGINA v AMMAR ELRIFAI

Judgment

BELL J: I will ask Buddin J to give the first judgment.
BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court in relation to a charge brought pursuant to s 52A(2) of the Crimes Act 1900. The applicant originally pleaded guilty in the Local Court and he adhered to that plea when he appeared for sentence in the District Court. The offence attracts a maximum penalty of fourteen years’ imprisonment. The offence charged was one of aggravated dangerous driving occasioning death in which the circumstance of aggravation was that the applicant was driving to escape a police pursuit and was as a result involved in an impact which occasioned the death of his passenger. The applicant was sentenced to four years’ imprisonment with a non-parole period of two years. He was also disqualified from holding or obtaining a driving licence for a period of three years.
The sentencing judge found the following facts, which are not the subject of challenge in this Court, for the purpose of sentencing the applicant. I gratefully adopt her Honour’s summary of those facts which is in the following terms:
…at about 10.10 pm on 5 August 2000, police noticed the 1998 Ford Falcon being driven by the prisoner, driving along Pitt Street, Merrylands at about 40 kilometres per hour, and noticed that it was driving straddling lanes one and two. Police were suspicious that the driver of the vehicle was under the influence of alcohol or some other substance and proposed to pull the vehicle over for a random breath test. They tried to do so by using their red and blue flashing lights and then their siren. The prisoner did not stop, although I accept must have known that the police were attempting to pull him over by the use of both lights and sirens. He accelerated harshly and sped away from police who gave chase. A police pursuit was put in place. At the intersection with Railway Parade, the prisoner drove through a red traffic control signal and continued through…

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 Ammar Elrifai

Details

AGLC: R v Ammar Elrifai [2002] NSWCCA 496
Case: [2002] NSWCCA 496
Decision Date: 9 December 2002

CaseChat Overview and Summary

The case of R v Ammar Elrifai was heard in the appellate court where the applicant sought to appeal against the severity of the sentence imposed for an offence of aggravated dangerous driving occasioning death. The incident occurred while the applicant was escaping from a police pursuit, resulting in the death of his best friend. The court was tasked with determining the appropriate legal framework to apply in assessing the severity of the sentence, particularly in light of the recent case of R v Whyte and its impact on the decision in R v Jurisic. The applicant, who suffered severe injuries in the incident, argued that the sentence should be reduced due to the mitigating circumstances surrounding the case.

The primary legal issue before the court was whether the circumstances of the case, including the applicant’s severe injuries and his close relationship with the deceased, warranted a reduction in the severity of the sentence. The court needed to balance these mitigating factors against the gravity of the offence, which involved aggravated dangerous driving that led to a fatality during a police pursuit. The court also had to consider the implications of the decision in R v Whyte and how it affected the application of the principles in R v Jurisic to cases involving similar circumstances.

In its reasoning, the court examined the principles established in R v Whyte and R v Jurisic, which provide a framework for assessing the severity of sentences in cases involving dangerous driving and resulting fatalities. The court acknowledged the significant impact of the applicant’s severe injuries and the personal connection with the deceased, but also highlighted the inherent danger posed by the act of escaping from a police pursuit. Ultimately, the court determined that while the mitigating factors were substantial, they did not sufficiently outweigh the seriousness of the offence. Consequently, the appeal against the severity of the sentence was dismissed, and the original sentence was upheld.

No further orders were made by the court beyond the dismissal of the severity appeal. The sentence imposed by the lower court remained in effect, reflecting the gravity of the offence and the need to deter similar conduct in the future.

Orders