R v El-Masri - [2003] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION: R v El-Masri [2003] QCA 52
PARTIES: R
v
El-Masri, Abdul Rahiman
(applicant)
FILE NO/S: CA No 360 of 2002 SC No 2195 of 2001
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Brisbane
DELIVERED EX 19 February 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 19 February 2003
JUDGES: McPherson and Jerrard JJA and Mackenzie J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: The application for leave to appeal against sentence is
dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AN
INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE
SENTENCE – WHEN REFUSED – OFFENCES AGAINST
THE PERSON – GENERALLY – where the offences
involved kidnapping, deprivation of liberty and assault
occasioning bodily harm in company – where guilty pleas
were entered – whether the sentence was manifestly
excessive – whether sufficient regard was had by the trial
judge to the pleas of guilty, the applicant’s background and
youth in mitigation of the sentence
R v Carrington & Long [1985] QCA 329; [1985] QCA 352,
distinguished
R v Ho [1990] QCA 65, distinguished
R v Watkins & Kennedy (2002) QCA 26, distinguished
COUNSEL: A J Rafter for the applicant
M J Copley for the respondent
SOLICITORS: Legal Aid (Queensland) for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

MACKENZIE J: The applicant pleaded guilty to offences of deprivation of liberty and assault occasioning bodily harm in company committed in late 1999 and offences of deprivation of liberty, kidnapping for ransom and assault occasioning bodily harm in company committed on 20 February 2000. The same complainant was involved in each of the offences.

It was alleged that he owed $20,000 to the applicant on account of drugs sold on behalf of the applicant. The late 1999 charges relate to an occasion when the complainant came to Brisbane to see the applicant. He got into a vehicle occupied by the applicant and others in order to discuss the debt. He was prevented from getting out and the applicant assaulted him during that period while he was deprived of his liberty.

The February 2000 offences occurred when the complainant was visited by two men, neither of whom was the applicant, and went with them to another house in expectation of a drug purchase. At that house one of the men said he was a hit man and the complainant was assaulted with an iron bar and a baseball bat. Money was demanded from him. He was then tied up in a way that placed him at risk of choking if he moved.

The applicant was telephoned and advised that the complainant had been captured. The complainant was told that he was lucky that the applicant wanted him alive after which he was blindfolded and struck several more times about the head and put…

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-Masri

Details

AGLC: R v El-Masri [2003] QCA 52
Case: [2003] QCA 52
Decision Date: 19/02/2003

CaseChat Overview and Summary

In the matter of the Crown versus El-Masri, the appellant, a convicted person, sought to appeal against the sentence imposed upon him following his conviction for various offences. The case was heard in the High Court of Australia, which was tasked with determining the legality and fairness of the sentence as well as the process leading up to it. The primary legal issue before the Court was whether the sentence imposed by the lower court was excessive or unjust, and if the appellant's application for leave to appeal should be granted.

The Court considered the nature and severity of the crimes committed by the appellant, the mitigating and aggravating factors, and the proportionality of the sentence in relation to similar cases. The appellant argued that the sentence was unduly harsh and did not adequately reflect the circumstances of the case. However, the Court found that the lower court had exercised its discretion appropriately and had taken into account all relevant factors when imposing the sentence. The Court further held that there were no errors in the legal process that would warrant an appeal or a new trial.

After careful consideration of the arguments presented by both parties, the High Court dismissed the appellant's application for leave to appeal against the sentence. The Court found that the sentence was proportionate to the nature and gravity of the offences committed and that there were no grounds for reducing the sentence. Consequently, the Court upheld the original sentence imposed by the lower court.

Orders

Orders of the court

The application for leave to appeal against sentence is

dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v El-Masri [2003] QCA 52
PARTIES:	R v El-Masri, Abdul Rahiman (applicant)
FILE NO/S:	CA No 360 of 2002 SC No 2195 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX	19 February 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2003
JUDGES:	McPherson and Jerrard JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AN INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – OFFENCES AGAINST THE PERSON – GENERALLY – where the offences involved kidnapping, deprivation of liberty and assault occasioning bodily harm in company – where guilty pleas were entered – whether the sentence was manifestly excessive – whether sufficient regard was had by the trial judge to the pleas of guilty, the applicant’s background and youth in mitigation of the sentence
R v Carrington & Long [1985] QCA 329; [1985] QCA 352, distinguished R v Ho [1990] QCA 65, distinguished R v Watkins & Kennedy (2002) QCA 26, distinguished
COUNSEL:	A J Rafter for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid (Queensland) for the applicant Director of Public Prosecutions (Queensland) for the respondent