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R v Elmir

R v Elmir

Case [2003] NSWCCA 192 2 July 2003

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CITATION: R v Elmir; R v Salami [2003] NSWCCA 192

HEARING DATE(S): 2 July 2003

JUDGMENT DATE:
2 July 2003

JUDGMENT OF: Mason P at 1; Dowd J at 32; Adams J at 2

DECISION: In respect of Elmir: Count 1 -Sentence below quashed. Substituted therefor a sentence of two years to commence on 28 February 2003 with a non-parole period of one year; Count 2 - A fixed term of imprisonment of nine months to commence on 28 February 2003 to be served concurrently; In respect of Salami: Count 1 - The sentence below be quashed. Substituted therefor a term of imprisonment of one year and nine months with a non parole period of nine months. Count 2 - A fixed term of imprisonment of nine months. Both sentences to commence on 28 February 2003.

CATCHWORDS: Sentence - Crown appeal - home invasion - payback for attack on young brother of one offender - whether mitigation - periodic detention increased to full time imprisonment

LEGISLATION CITED: s5D of the Criminal Appeal Act, 1912
ss 44, 88 and 89 of the Crimes (Sentencing Procedure) Act, 1999

PARTIES :

The Crown (Appellant)
Fawaz Mohammed Elmir (Respondent)
The Crown (Appellant)
Jamal Salami (Respondent)

FILE NUMBER(S): CCA 60090/03; 60091/03

COUNSEL: G I O Rowling (Crown)
J Dailly SC (Respondents)

SOLICITORS: S E O'Connor (Crown)
James A Hall (Respondents)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0263 & 02/21/0264

LOWER COURT
JUDICIAL OFFICER : English DCJ

IN THE COURT OF

CRIMINAL APPEAL

60090/03

60091/03

MASON P

DOWD J

ADAMS J

WEDNESDAY 2 JULY 2003

REGINA v FAWAZ MOHAMMED ELMIR

REGINA v JAMAL SALAMI

JUDGMENT

1 MASON P: In the matter of Elmir and Salami I invite Adams J to deliver the first judgment to the Court.

2 ADAMS J: This is an appeal by the Director of Public Prosecutions pursuant to the provisions of s5D of the Criminal Appeal Act, 1912 against sentences imposed upon Fawaz Mohammed Elmir and Jamal Salami by her Honour Judge English at Parramatta District Court on 19 February 2003. The Director of Public Prosecutions contends that the sentences imposed are manifestly inadequate.

3 The offences occurred on 2 January 2002. The respondents were each charged in the following terms -

(i) at Revesby he did break and enter a certain dwelling house, to wit, 95/161 Horsley Road, Panania, within the curtilage of the dwelling house at Horsley Road, Panania, with intent to commit a serious indictable offence, to wit, assault occasioning actual bodily harm in circumstances of aggravation, to wit, he used corporal violence on Nathan Moody;

(ii) further, on the same date and at the same place he did assault Nathan Moody thereby occasioning actual bodily harm to him.

4 The first offence carries a maximum penalty of fourteen years, the second five years. It is not significantly disputed that these offences were committed against a background in which the respondent Elmir had become aware of a serious assault upon his younger brother, Ahmed, a matter which…

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 Elmir

Details

AGLC: R v Elmir [2003] NSWCCA 192
Case: [2003] NSWCCA 192
Decision Date: 2 July 2003

CaseChat Overview and Summary

The case of R v Elmir involved the defendant Elmir who was convicted for his involvement in a home invasion. The Crown appealed the sentence imposed by the lower court, seeking a harsher penalty for Elmir's role in the offence, which was carried out as a form of retribution for an earlier attack on the younger brother of one of the other offenders. The High Court of Australia heard the appeal, tasked with determining whether the original sentence adequately reflected the gravity of the crime and if the increase from periodic detention to full-time imprisonment was justified.

The court needed to assess whether the original sentence took into account all relevant mitigating and aggravating factors. In particular, it had to consider the nature of the home invasion, its execution, and the underlying motive of revenge. The appeal also raised questions about the proportionality of the sentence and the effectiveness of the punishment in deterring future criminal behaviour. The court examined if the original sentence was lenient given the seriousness of the offence and whether the increase to full-time imprisonment was an appropriate response to the nature and circumstances of the crime.

In its judgment, the court concluded that the original sentence did not sufficiently account for the severity and premeditated nature of the home invasion. It found that the motivation for revenge, coupled with the violent execution of the crime, warranted a more severe penalty. The court determined that increasing the sentence to full-time imprisonment was a proportionate response to the gravity of Elmir's actions. The appeal was thus upheld, and the sentence was modified accordingly. The court ordered that Elmir's periodic detention be replaced with a full-time imprisonment sentence, reflecting the seriousness of the crime and ensuring that the punishment was commensurate with the offence committed.

Orders