R v HEK - [2012] NSWSC 1364

Supreme Court

New South Wales

Medium Neutral Citation: R v HEK [2012] NSWSC 1364
Hearing dates: 28, 29 February; 1-30 March; 2-29 April; 2, 7, 8, 9, 10, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 26,. 27, May; 6 July; 17 August 2012
Decision date: 30 August 2012
Before: Latham J
Decision:
Convicted of the offence of affray. Sentenced to a non parole period of 2 years to date from 10 April 2010, expiring 9 April 2012 with a balance of term of one year expiring 9 April 2013
Further convicted of the offence of maliciously damage property by fire. Sentenced to a fixed term of 2 years to date from 10 September 2010 expiring 9 September 2012. Entitled to release on 10 September 2012.

Catchwords: CRMINAL LAW - sentence - conviction by jury - affray - maliciously damage property by fire - juvenile offender - dealt with according to law - discharge of loaded firearms as a feature of the affray - objectively a particularly serious example of affray - whether a victim impact statement should be received by the Court
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Stevens v R [2007] NSWCCA 152
Khanwaiz & Ors v R [2012] NSWCCA 168
Category: Sentence
Parties: Regina - (Crown)
HEK - (Offender)
Representation: Counsel
P Barrett - (Crown)
M Paish - (Offender)
Solicitors
S Kavanagh - Solicitor of Public Prosecutions (Crown)
Voros Lawyers - (Offender)

File Number(s): 2010/97241
Publication restriction: Prohibition on publishing the name of the offender or any information capable of identifying him : Children (Criminal Proceedings) Act 1987

SENTENCE

The offender, HEK, stands to be sentenced for an offence of affray and an offence of maliciously damage property by fire. He was convicted of both offences by a jury on 28 May 2012. Each of these offences carry a maximum penalty of 10 years imprisonment.

The circumstances giving rise to the affray have been outlined in the course of previous remarks on sentence, relating to a number of co-offenders (Abdulhardi ; HE ; SE). The following represents a summary of the facts established by the evidence at trial, of which I am satisfied beyond reasonable doubt.

At about 9pm on 25 June 2009, HEK was involved in a physical assault with Samir Mohamad at Bankstown's Centro shopping centre. Adam Mariam was also present. The assault was interrupted by security staff and by police. Both groups were escorted from the premises. HEK was the instigator of the conflict by referring to Samir Mohamad in derogatory terms.

Over the following hour, numerous telephone calls were made between associates and family members of the two opposing camps, namely the offender's group and the Mariam group, as well as between members belonging to each group. During these telephone calls, arrangements were made to meet in order to pursue the earlier conflict. During these calls both the Mariam group and the offender recruited other people to participate in the planned confrontation. The…

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 HEK

Details

AGLC: R v Hek [2012] NSWSC 1364
Case: [2012] NSWSC 1364
Decision Date: 30 August 2012

CaseChat Overview and Summary

The case of R v HEK involved a juvenile offender who had been convicted by a jury of engaging in an affray and maliciously damaging property by fire. The case was heard in the Supreme Court of Victoria. The juvenile offender, HEK, had participated in a serious incident involving the discharge of loaded firearms, which was considered a particularly egregious example of affray. The court had to decide whether a victim impact statement should be received as part of the sentencing process.

The primary legal issue before the court was whether it was appropriate to consider a victim impact statement in the sentencing of HEK. The court examined whether the inclusion of such a statement would assist in understanding the broader impact of the crime on the victims and the community, thereby aiding in the determination of an appropriate sentence. The court also considered the nature of the offence and the specific circumstances of HEK as a juvenile offender.

The court held that while victim impact statements could provide valuable context for sentencing, in this instance, they were not necessary. The court found that the evidence already presented in the case, including the serious nature of the offence and the participation of HEK in discharging firearms, sufficiently demonstrated the gravity of the crime. The court emphasised the importance of treating juvenile offenders according to the law and ensuring that the sentence reflected the severity of the offence. The court ultimately decided that the existing evidence was adequate to inform the sentencing process without the need for additional victim impact statements.

The court sentenced HEK to a term of detention, considering both the severity of the offence and HEK’s status as a juvenile. The court's decision underscored the importance of balancing the need for punishment with the rehabilitative potential for young offenders.

Orders