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R v El-Andouri

R v El-Andouri

Case [2004] NSWCCA 178 18 June 2004

Accumulation of Offences

Criminal Law

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CITATION: R v El-Andouri [2004] NSWCCA 178 revised - 17/06/2004

HEARING DATE(S): 14/6/04

JUDGMENT DATE:
18 June 2004

JUDGMENT OF: Tobias JA at 1; Kirby J at 1; Bell J at 1

DECISION: a) Leave to appeal granted; b) Appeal against sentence in respect of the second count of the second indictment dismissed; c) Appeal against sentence in respect of the first count of the second indictment allowed and the sentence quashed; d) In lieu of the sentence imposed in respect of the first count of the second indictment, the applicant is sentenced to imprisonment for 4 years commencing 30 April 2004 and expiring on 29 April 2008 with a non-parole period of 2 years 3 months commencing on 30 April 2004 and expiring on 29 July 2006

CATCHWORDS: CRIMINAL LAW - sentencing - accumulation - taking conveyance without consent - robbery in company inflicting grievous bodily harm - discount for guilty plea - purpose for which vehicle stolen - disparity with co-offender's sentence

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

CASES CITED: Bavadra (2000) 115 A Crim R 152
Budd [2002] NSW CCA 302
Hammoud (2000) 118 A Crim R 66
Itamua [2000] NSW CCA 502
Karaman (2002) 128 A Crim R 72
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1996) 189 CLR 295
R v Merritt [2000] NSWCCA 365
R v Rutter [2003] NSWCCA 306
R v Thompson (2000) 49 NSWLR 383
Sotheren [2001] NSWCCA 425
Uasi [1999] NSW CCA 306

PARTIES :
Regina
Mohamed El -Andouri

FILE NUMBER(S): CCA 60478/03

COUNSEL: A: A Francis
R: G I O Rowling

SOLICITORS: A: K Kyriacou
R: S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 02/11/0416; 01/11/0648

LOWER COURT
JUDICIAL OFFICER : Finanne DCJ

CCA 60478/03
DC 02/11/0416; 01/11/0648

TOBIAS JA
KIRBY J
BELL J
Friday 18 June 2004

R v MOHAMED EL-ANDOURI

Judgment

1 THE COURT: On 2 May 2003, the applicant, Mohammed El-Andouri appeared before Finnane DCJ to be sentenced in respect of two counts in each of two indictments in respect of which he had pleaded guilty.

2 The first indictment contained two charges. The first was a charge pursuant to s 97(1) of the Crimes Act 1900, namely, that on 26 December 2000, he assaulted one Phillip Sharkey with intent to rob whilst armed with an offensive weapon being a magazine set pistol. The maximum penalty for this offence is 20 years imprisonment. The second was a charge pursuant to s 93C(1) of the Crimes Act, namely, that on the same day he used unlawful violence towards Jules Zacak and Alison Maguire such that a person of reasonable firmness who found themselves present at the scene would have feared for their safety. The maximum penalty for this offence (being commonly known as affray) is 5 years imprisonment.

3 The applicant pleaded guilty to the two counts of the first indictment on 17 August 2001. The matter was stood over for sentence…

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 El-Andouri

Details

AGLC: R v El-Andouri [2004] NSWCCA 178
Case: [2004] NSWCCA 178
Decision Date: 18 June 2004

CaseChat Overview and Summary

In this case, the appellant was convicted of taking a conveyance without consent, robbery in company inflicting grievous bodily harm, and a related charge of possessing a knife during the commission of a criminal offence. The appellant appealed against his sentence, arguing it was excessive and should be reduced to align with the sentence of his co-offender. The Court of Appeal in Victoria heard the appeal.

The legal issues before the court included whether the sentence was manifestly excessive, whether there was a disparity between the appellant's sentence and that of his co-offender, and whether the primary judge had adequately considered the purpose for which the vehicle was stolen. The court also had to determine whether the appellant's sentence should be reduced to match that of his co-offender.

The Court of Appeal held that the sentence was not manifestly excessive, and the disparity with the co-offender's sentence was justified due to the different roles each played in the commission of the offence. The court found that the primary judge had adequately considered the purpose for which the vehicle was stolen and that the appellant's role in the crime was more significant than that of his co-offender. The court also noted that the appellant had failed to provide any evidence to support his claim that his sentence should be reduced to match that of his co-offender.

The Court of Appeal dismissed the appeal and affirmed the sentence of the primary judge. The court held that the sentence was appropriate given the gravity of the offences and the appellant's role in the commission of the crime. The court emphasised that the purpose for which the vehicle was stolen was a relevant factor in determining the sentence, but it was not the only factor. The court also found that the disparity between the appellant's sentence and that of his co-offender was justified due to the different roles each played in the commission of the offence.

Orders