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R v Askarou

R v Askarou

Case [2020] NSWCCA 222 31 August 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Askarou [2020] NSWCCA 222
Hearing dates: 19 August 2020
Decision date: 31 August 2020
Before: Gleeson JA at [1]
Rothman J at [54]
Price J at [55]
Decision:
(1)   Crown appeal against sentence allowed.
(2)   The sentence imposed by Judge Bourke SC in the District Court on 6 March 2020 be set aside.
(3)   In lieu, sentence the respondent to 19 years imprisonment consisting of a non-parole period of 13 years commencing on 12 January 2018 and expiring on 11 January 2031, with the balance of term of 6 years commencing on 12 January 2031 and expiring on 11 January 2037. The respondent is eligible for release on parole on 11 January 2031.

Catchwords:
CRIME – Crown appeal against sentence – where asserted manifest inadequacy – shoot with intent to murder – Crimes Act 1900 (NSW) s 29 – where primary judge found offence was within high range of objective seriousness – where victim suffered catastrophic and permanent injury – where offender’s subjective circumstances generally not positive – residual discretion – offender re-sentenced

Legislation Cited:
Crimes Act 1900 (NSW), ss 29, 33A(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A, 3A, 21A
Criminal Appeal Act 1912 (NSW), s 5D

Cases Cited:
Chaouk v R [2017] NSWCCA 295
CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Devaney v R [2012] NSWCCA 285
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Haines v R [2012] NSWCCA 238
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Melbom v R [2011] NSWCCA 22
Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104
R v Hallocoglu (1992) 29 NSWLR 67
R v Jennar [2014] NSWCCA 331
R v Koloamatangi [2011] NSWCCA 288
R v Reeves [2014] NSWCCA 154
R v WC [2008] NSWCCA 268
Williams v R [2012] NSWCCA 172

Category: Principal judgment
Parties: Director of Public Prosecutions (NSW) (Appellant)
Naramsin Askarou (Respondent)
Representation:
Counsel:
B Baker (Appellant)
A Francis (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
Bannisters Lawyers (Respondent)

File Number(s): 2018/12583
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 68

Date of Decision:

6 March 2020

Before:

Bourke SC DCJ

File Number(s):

2018/12583

Judgment

GLEESON JA: Late in the evening on 28 July 2016, the respondent, Mr Naramsin Askarou, fired three shots at Mr Zia Kryo from close range in the driveway of the victim’s home at Prairiewood, hitting him once in the torso. The victim suffered a catastrophic spinal injury and is now a paraplegic. The respondent was charged on indictment with the offence…

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 Askarou

Details

AGLC: R v Askarou [2020] NSWCCA 222
Case: [2020] NSWCCA 222
Decision Date: 31 August 2020

CaseChat Overview and Summary

The appeal was brought by the Crown against the sentence imposed on Askarou, who had been convicted of shooting a victim with intent to murder under section 29 of the Crimes Act 1900 (NSW). The victim suffered catastrophic and permanent injuries as a result of the attack. The primary judge had found the offence to be within the high range of objective seriousness, but had considered the offender's subjective circumstances, which were not generally positive. The Crown argued that the sentence was manifestly inadequate, and the Court of Appeal was required to determine whether the sentence was manifestly inadequate and whether the offender should be re-sentenced.

The court considered whether the sentence imposed was manifestly inadequate, taking into account the objective seriousness of the offence and the offender's subjective circumstances. The court noted that the primary judge had found the offence to be within the high range of objective seriousness due to the catastrophic and permanent injury suffered by the victim. The court also considered the offender's subjective circumstances, which were not generally positive, but found that these did not outweigh the objective seriousness of the offence. The court found that the sentence was manifestly inadequate and exercised its residual discretion to re-sentence the offender.

In light of the findings, the offender was re-sentenced to a term of imprisonment with a non-parole period. The court considered the principles of totality and proportionality in determining the new sentence. The court emphasised the need for the sentence to reflect the gravity of the offence and to provide adequate deterrence and denunciation. The court also considered the offender's subjective circumstances in determining the length of the sentence, but found that these did not significantly mitigate the objective seriousness of the offence.

The final orders of the court were that the offender be re-sentenced to a term of imprisonment with a non-parole period. The court emphasised the need for the sentence to reflect the gravity of the offence and to provide adequate deterrence and denunciation. The court also considered the offender's subjective circumstances in determining the length of the sentence, but found that these did not significantly mitigate the objective seriousness of the offence.

Orders