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R v Elkassir

R v Elkassir

Case [2013] NSWCCA 181 2 August 2013

Sentencing

Aggravated & Exemplary Damages

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Court of Criminal Appeal

New South Wales

Case Title: R v Elkassir

Medium Neutral Citation: [2013] NSWCCA 181

Hearing Date(s): 21 June 2013

Decision Date: 02 August 2013

Before: Emmett JA at [1]
R A Hulme J at [7]
R S Hulme AJ at [87]

Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentencing - Crown appeal - aggravated dangerous driving causing death - high moral culpability - strong subjective case - self punishment - consideration of guideline judgment in Whyte - importance of general deterrence even for young offender
CRIMINAL LAW - sentencing - dangerous driving causing death - aggravated offence - double counting of speed of vehicle
CRIMINAL LAW - sentencing - manifest inadequacy of non-parole period - residual discretion - principles - subsequent worsening of psychiatric condition

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited: Bugmy v The Queen (1990) 169 CLR 525
Deakin v The Queen (1984) 58 ALJR 367
Director of Public Prosecutions v Neethling [2009] VSCA 116; 52 MVR 422
DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Duncan v R [2012] NSWCCA 78
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Power v The Queen (1974) 131 CLR 623
R v AEM Snr [2002] NSWCCA 58
R v Baker [2000] NSWCCA 85
R v Dhanhoa [2000] NSWCCA 257
R v Fidow [2004] NSWCCA 172
R v Hamieh [2010] NSWCCA 189
R v Howcher [2004] NSWCCA 179
R v Koosmen [2004] NSWCCA 359
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Ryan [2003] NSWCCA 202
R v Simpson (2001) NSWCCA 534; (2001) 53 NSWLR 704
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252

Category: Principal judgment

Parties: Regina
Mohammed Elkassir

Representation

- Counsel: Counsel:
Ms J Dwyer (Appellant)
Mr T Game SC (Respondent)

- Solicitors: Solicitors:
Solicitor for Public Prosecutions
J H Fisher & Sons

File Number(s): 2011/215236

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Flannery DCJ

- Date of Decision: 14 December 2012

- Court File Number(s): 2011/215236

JUDGMENT

EMMETT JA: This Crown appeal relates to the sentence imposed on the respondent following a plea of guilty to a charge of aggravated dangerous driving occasioning death. The respondent was sentenced in the District Court to imprisonment for three years, with a non-parole period of 12 months. I have had the advantage of reading in draft form the proposed reasons of R A Hulme J, in which his Honour concludes that, notwithstanding the manifest inadequacy of the non-parole period, the Crown appeal should be dismissed.
On the evening in question, the respondent and three friends were at a poker tournament at a hotel in Condell Park. The respondent and one of his friends left in the respondent's car. The other…

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 Elkassir

Details

AGLC: R v Elkassir [2013] NSWCCA 181
Case: [2013] NSWCCA 181
Decision Date: 02 August 2013

CaseChat Overview and Summary

In the case of R v Elkassir, the appellant was convicted of aggravated dangerous driving causing death, with the victim being a child. The Crown appealed the sentence, arguing it was manifestly inadequate. The matter was heard in the Court of Criminal Appeal. The central issue was whether the sentence imposed by the primary judge was manifestly inadequate and, if so, what the appropriate sentence should be.

The court considered the principles of sentencing in cases involving dangerous driving causing death, particularly the requirement to take into account the moral culpability of the offender and the need for general deterrence. The court also had to address the argument that the primary judge had double counted the speed of the vehicle when determining the level of culpability. Furthermore, the court considered the appellant's psychiatric condition and whether it warranted a reduction in the non-parole period.

The court found that the sentence was indeed manifestly inadequate, primarily due to the high moral culpability of the appellant and the need for general deterrence. The court rejected the notion that self-punishment should be a mitigating factor and emphasised the importance of deterrence even for young offenders. The court also held that the primary judge had not double counted the speed of the vehicle but had appropriately considered it as part of the overall circumstances of the offence. The court determined that the appropriate sentence should reflect the gravity of the offence and the need to protect the community. The court imposed a new sentence, setting a non-parole period that balanced the need for punishment, deterrence, and rehabilitation.

Orders