R v Assaf - [2022] NSWDC 466

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Assaf [2022] NSWDC 466
Hearing dates: 25 February 2022
Date of orders: 25 February 2022
Decision date: 25 February 2022
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of 41 months with a non-parole period of 22 months at [57].

Catchwords:
CRIME — Violent offences — Reckless wounding – in company
SENTENCING — Aggravating factors — Breach of conditional liberty
SENTENCING — Commencement — Pre-sentence custody period
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity — General principles — Maximum penalty — Moral culpability — Objective seriousness
SENTENCING — Subjective considerations on sentence — Age of offender — Special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Daher [2021] NSWDC 739
R v Thomas [2007] NSWCCA 269
R v Qutami (2001) 127 A Crim R 369
Imbornone v The Queen [2017] NSWCCA 144
Bugmy v The Queen (2013) 249 CLR 571
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
R v Postiglione (1991) 24 NSWLR 58

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecution)
Ibrahim Assaf (Offender)
Representation:
Ms I Maxwell-Williams (Solicitor, Office of the Director of Public Prosecutions)
Mr M Smith (Counsel for the Offender)

File Number(s): 2019/00375678

Judgment

Ibrahim Assaf, born in 1998, pleads guilty to one count of reckless wounding in company contrary to s 35(3) of the Crimes Act 1900. The offence carries a maximum penalty of ten years imprisonment, with a standard non-parole period of four years.
The sentence has to take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, and the yardsticks are indicated by both the standard non-parole period and the maximum penalty for this offence.
The plea was entered in circumstances which is agreed justify a 5% discount for the utilitarian value of that plea.
It is acknowledged by Mr Smith, counsel for the offender, that a term of full -ime custody is appropriate and no alternatives need be considered.
The sentencing exercise has been assisted, but in some ways slightly complicated by the fact that I sentenced a co-offender, Mr Daher (R v Daher [2021] NSWDC 739 on 30 November 2021 to a term of two years and nine months imprisonment with a non-parole period of 18 months inclusive of a 25% discount for the plea of guilty.
The offender was arrested on 20 November 2019 and was bail refused until 25 March 2020, a period of approximately four months. He was then bail refused for a week on another matter and served a custodial sentence for a larceny from 29 October. That sentence was imposed on 26 July 2021 at the Bankstown Local Court. The sentence imposed was 12 months with a non-parole period of six months expiring 28 April 2021. There is no…

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 Assaf

Details

AGLC: R v Assaf [2022] NSWDC 466
Case: [2022] NSWDC 466
Decision Date: 25 February 2022

CaseChat Overview and Summary

In the case of R v Assaf, the defendant was charged with recklessly wounding another person in company, a crime that occurred in the jurisdiction of the Supreme Court. The case involved the sentencing of Assaf, who had pleaded guilty to the offence. The legal issues before the court included the identification and weighting of aggravating and mitigating factors, the commencement of the sentence, and the principles of parity and proportionality in sentencing.

The court was required to consider several factors, including the breach of conditional liberty by the defendant, the pre-sentence custody period, the defendant's plea of guilty and remorse, and the maximum penalty applicable to the offence. The court also considered the moral culpability of the defendant, the objective seriousness of the crime, and the subjective considerations such as the age of the offender and any special circumstances. The court had to determine the appropriate term of imprisonment and the non-parole period, taking into account the joint criminal enterprise and the principles of parity.

The court found that the defendant's breach of conditional liberty and the pre-sentence custody period were significant aggravating factors. However, the defendant's plea of guilty and the expression of remorse were mitigating factors. The court considered the maximum penalty for the offence and the objective seriousness of the crime, finding that the defendant's actions warranted a substantial term of imprisonment. After weighing all the factors, the court sentenced Assaf to a term of imprisonment of 41 months, with a non-parole period of 22 months.

The orders of the court included a term of imprisonment of 41 months, with a non-parole period of 22 months. This sentence reflects the court's consideration of all the relevant factors and principles in determining the appropriate punishment for the defendant's crime.

Orders

Orders of the court

A term of imprisonment of 41 months with a non-parole period of 22 months at [57].

Background

Background to the litigation

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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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Medium Neutral Citation:	R v Assaf [2022] NSWDC 466
Hearing dates:	25 February 2022
Date of orders:	25 February 2022
Decision date:	25 February 2022
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 41 months with a non-parole period of 22 months at [57].
Catchwords:	CRIME — Violent offences — Reckless wounding – in company SENTENCING — Aggravating factors — Breach of conditional liberty SENTENCING — Commencement — Pre-sentence custody period SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity — General principles — Maximum penalty — Moral culpability — Objective seriousness SENTENCING — Subjective considerations on sentence — Age of offender — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Daher [2021] NSWDC 739 R v Thomas [2007] NSWCCA 269 R v Qutami (2001) 127 A Crim R 369 Imbornone v The Queen [2017] NSWCCA 144 Bugmy v The Queen (2013) 249 CLR 571 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Postiglione (1991) 24 NSWLR 58
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecution) Ibrahim Assaf (Offender)
Representation:	Ms I Maxwell-Williams (Solicitor, Office of the Director of Public Prosecutions) Mr M Smith (Counsel for the Offender)
File Number(s):	2019/00375678