R v Elcheikh - [2012] QCA 189

SUPREME COURT OF QUEENSLAND

CITATION:

R v Elcheikh [2012] QCA 189

PARTIES:

R
v
ELCHEIKH, Hamza Nasser
(applicant)

FILE NO/S:

CA No 35 of 2012
DC No 1266 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2012

JUDGES:

Fraser JA, Fryberg and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of wounding and one count of assault occasioning bodily harm while in company – where the applicant was sentenced to 18 months imprisonment with a parole release date of 10 August 2012 – where the applicant concedes the head sentence was not manifestly excessive – where the applicant contends that factors in his favour should have been reflected in a non custodial outcome or an earlier parole release date – whether the learned sentencing judge correctly took into account both the favourable and unfavourable circumstances as they applied to the applicant and his co-offender – whether the sentence is manifestly excessive

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered
R v Hays; ex parte Attorney-General of Queensland
[1999] QCA 443, considered
R v Mladenovic; ex parte Attorney-General of Queensland [2006] QCA 176, cited
R v Swayn; ex parte Attorney-General of Queensland
[2009] QCA 81, cited
R v Taylor & Napatali; ex parte Attorney-General of Queensland (1999) 106 A Crim R 578; [1999] QCA 323, cited

COUNSEL:

D R Mackenzie for the applicant
D C Boyle for the respondent

SOLICITORS:

Bartels Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Martin J and the order proposed by his Honour.

FRYBERG J: I agree with Martin J that this application should be dismissed. I agree with his Honour’s reasons for that order.

MARTIN J: There are two applications before the Court. The first in time is an application for leave to appeal against a sentence of 18 months imprisonment with an order that the applicant be released on parole on 10 August 2012.

The second application is an appeal against conviction. This was filed in error and has been withdrawn.

On 30 January 2012 the applicant pleaded guilty to one count of wounding and one count of assault occasioning bodily harm while in company. On 10 February he was sentenced, on each count, to eighteen months imprisonment with an order that he be released on parole after six months. A co-offender was sentenced at the same time and, so far as is relevant, received the same punishment for the same offences.

It is conceded by the applicant that…

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.

Keep reading for free

Create a free CaseChat account to read R v Elcheikh and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] QCA 189
Decision Date: 13 July 2012

CaseChat Overview and Summary

In the case of R v Elcheikh, the appellant was convicted of one count of wounding and one count of assault occasioning bodily harm while in company. The appellant was sentenced to 18 months imprisonment, with a parole release date set for 10 August 2012. The appellant lodged an appeal against his sentence, arguing that it was manifestly excessive or inadequate. The appellant conceded that the head sentence was not manifestly excessive but contended that the sentence did not appropriately reflect the factors in his favour, which warranted a non-custodial outcome or an earlier parole release date.

The court was required to determine whether the learned sentencing judge correctly considered both the favourable and unfavourable circumstances as they applied to the appellant and his co-offender. The court needed to assess whether the sentence was manifestly excessive or inadequate, taking into account all relevant factors. The court was also required to consider whether the sentence imposed was appropriate in light of the appellant's personal circumstances and the principles of sentencing.

The court found that the learned sentencing judge had appropriately considered both the favourable and unfavourable circumstances as they applied to the appellant and his co-offender. The court held that the sentence imposed was not manifestly excessive or inadequate. The court found that the sentencing judge had appropriately balanced the appellant's personal circumstances with the need for deterrence and denunciation. The court was satisfied that the sentence imposed was appropriate and did not require interference.

The court refused the appellant's application, finding that the sentence imposed was not manifestly excessive or inadequate. The court held that the learned sentencing judge had appropriately considered all relevant factors and that the sentence imposed was appropriate in light of the appellant's personal circumstances and the principles of sentencing.

Orders

Orders of the court

Application refused.

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 Elcheikh [2012] QCA 189
PARTIES:	R v ELCHEIKH, Hamza Nasser (applicant)
FILE NO/S:	CA No 35 of 2012 DC No 1266 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 July 2012
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2012
JUDGES:	Fraser JA, Fryberg and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of wounding and one count of assault occasioning bodily harm while in company – where the applicant was sentenced to 18 months imprisonment with a parole release date of 10 August 2012 – where the applicant concedes the head sentence was not manifestly excessive – where the applicant contends that factors in his favour should have been reflected in a non custodial outcome or an earlier parole release date – whether the learned sentencing judge correctly took into account both the favourable and unfavourable circumstances as they applied to the applicant and his co-offender – whether the sentence is manifestly excessive Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered R v Hays; ex parte Attorney-General of Queensland [1999] QCA 443, considered R v Mladenovic; ex parte Attorney-General of Queensland [2006] QCA 176, cited R v Swayn; ex parte Attorney-General of Queensland [2009] QCA 81, cited R v Taylor & Napatali; ex parte Attorney-General of Queensland (1999) 106 A Crim R 578; [1999] QCA 323, cited
COUNSEL:	D R Mackenzie for the applicant D C Boyle for the respondent
SOLICITORS:	Bartels Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent