R v Charle Azzi - [2003] NSWCCA 10

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Charle Azzi [2003] NSWCCA 10

FILE NUMBER(S):
60481/2002

HEARING DATE(S): 6 February 2003

JUDGMENT DATE: 06/02/2003

PARTIES:
Regina
Charle Azzi

JUDGMENT OF: Hodgson JA Sully J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3304

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
P Ingram (Crown)
M Higgins (Respondent)

SOLICITORS:
SE O'Connor (Crown)
Hugh White & Co (Respondent)

CATCHWORDS:
Crown appeal against sentence - question of parity with a co-offender - respondent has an intellectual disability - sentence held to be manifestly inadequate but appeal dismissed in exercise of court's discretion

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Crown appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60481/02
HODGSON JA
SULLY J
BUDDIN J
6 FEBRUARY 2003

REGINA v CHARLE AZZI

Judgment

BUDDIN J: This is an appeal by the Director of Public Prosecutions, pursuant to section 5D of the Criminal Appeal Act 1912, against what is asserted to be a manifestly inadequate sentence imposed upon the respondent in the Campbelltown District Court on 26 September 2002.
The respondent originally pleaded guilty in the Local Court to an offence, contrary to s 97(1) of the Crimes Act 1900, of robbery whilst being armed with an offensive weapon which he committed on 3 January 2002 (the “Padstow offence”). The maximum penalty prescribed for the offence is a term of imprisonment for 20 years. The respondent adhered to his plea of guilty when he appeared for sentence in the District Court. On that occasion the respondent requested that the sentencing judge also take into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, a further offence of a similar nature which had been committed four days before the “Padstow offence” on 30 December 2001 (“the Moorebank offence”). The respondent was sentenced by Judge Goldring to imprisonment for a period of two years which was ordered to commence on the day on which sentence was imposed. His Honour made an order, pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, for the suspension of the execution of the sentence which order was conditional upon the respondent entering into a bond, attached to which there were various conditions.
The facts giving rise to the two offences in question, are not in dispute, and may be briefly stated. In relation to the “Padstow offence”, the respondent drove himself and his co-offender (his then girlfriend “MM”) to the vicinity of a service station in Padstow where, for some time, they observed patrons coming and going from the premises. Having covered their faces with balaclavas, they then ran towards the entrance of the service station. The respondent ran into the premises wielding a piece of timber measuring about a metre in length. He raised it above his head and demanded that the console operator open the till. Fearing for his safety the operator proceeded to do…

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 Charle Azzi

Details

AGLC: R v Charle Azzi [2003] NSWCCA 10
Case: [2003] NSWCCA 10
Decision Date: 6 February 2003

CaseChat Overview and Summary

The case of R v Charle Azzi involved an appeal by the Crown against the sentence imposed on the respondent. Charle Azzi had been convicted of an offence and was sentenced by a lower court. The Crown sought to appeal the sentence, arguing it was inadequate, particularly in comparison to the sentence received by a co-offender. The appeal was heard by the higher court, which had to determine whether the sentence was indeed inadequate and, if so, whether the appeal should be allowed.

The central legal issue before the court was whether the sentence imposed on Charle Azzi was manifestly inadequate, considering his intellectual disability and the need for parity with the sentence given to his co-offender. The court needed to assess the severity of the crime, the individual circumstances of the respondent, and the principle of parity in sentencing. The court also had to consider whether, in the exercise of its discretion, it should allow the appeal despite finding the sentence inadequate.

In delivering the judgment, the court acknowledged that the sentence was manifestly inadequate. However, the court determined that, in exercising its discretion, it would not allow the appeal. The court recognised the respondent's intellectual disability as a significant mitigating factor and considered the principle of parity with the co-offender. Ultimately, the court found that the appeal should be dismissed. The court's reasoning focused on the overall balance of the circumstances, including the respondent's intellectual disability and the discretion available to the higher court in such matters.

As a result of the court's decision, the appeal was dismissed. The original sentence imposed on Charle Azzi remained in place, despite the court's finding that it was inadequate. The court's decision highlighted the importance of considering individual circumstances, including intellectual disability, and the exercise of judicial discretion in sentencing appeals.

Orders