R v Kbayli - [2017] NSWDC 197

District Court

New South Wales

Medium Neutral Citation: R v Kbayli [2017] NSWDC 197
Hearing dates: 17 November 2016, 3 and 8 March 2017
Date of orders: 08 March 2017
Decision date: 08 March 2017
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Assault occasioning actual bodily harm, in company – full time imprisonment for a term of 2 months and 13 days
Affray (aggregate sentence) – term of imprisonment for 1 year and 6 months – execution of sentence to be suspended – offender entered into good behaviour bond for 1 year and 6 months
Catchwords: CRIME – assault occasioning actual bodily harm in company and affray – one offence of assault occasioning actual bodily harm in company, contrary to s 59(2) – two offences of affray, contrary to s 93C – pleas of guilty – suspended sentence due to offender’s rehabilitation of offending behaviour whilst on bail
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Chambour; R v Khallouf (No 5) [2016] NSWDC 379
R v Dickinson [2004] NSWCCA 452
R v Hampton [1999] NSWCCA 341
R v Reid [2005] NSWCCA 309; (2005) 155 A Crim R 428
R v Watt (unreported, 2 April 1997, NSWCCA)
Category: Sentence
Parties: Crown
Abraham Kbayli
Representation:
Counsel:
R Rodger (Crown)
GJ Jones (Offender)
Solicitors:
Solicitor for the ODPP (Crown)
AKN & Associates (Offender)

File Number(s): 2013/271649
Publication restriction: Nil

Judgment

HIS HONOUR: Abraham Kbayli stands for sentence as a consequence of having pleaded guilty to three offences. Two of the offences are each of affray. The third offence is assault occasioning actual bodily harm committed whilst in company. Each of the offences occurred in the early hours of Sunday 8 September 2013. The first affray occurred in the Opera Bar at the Sydney Opera House. The second affray occurred shortly thereafter in the carpark of the Sydney Opera House. The assault occasioning actual bodily harm upon Isaac Parry, in company, occurred during the second affray.
To the first affray the offender pleaded guilty in the Local Court on 19 February 2015. To the second affray the offender pleaded guilty on 21 September 2016, on the third day after a jury trial was due to commence. The plea to assault occasioning actual bodily harm in company was entered on that same day.
The proceedings in the Local Court commenced shortly after 8 September 2013. There were 20 appearances in the Local Court prior to the offender’s being committed for sentence on 29 June 2015. The plea of guilty to the first affray at the Opera Bar in the Local Court on 19 February 2015 could not be seen to be a plea of guilty at the earliest available opportunity, but was prior to committal. It entitles the offender to a discount of 25 per cent for the utilitarian value of that plea. The fact that the offender is entitled to a 25 per cent discount was conceded by the Crown.
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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 Kbayli

Details

AGLC: R v Kbayli [2017] NSWDC 197
Case: [2017] NSWDC 197
Decision Date: 08 March 2017

CaseChat Overview and Summary

The matter of R v Kbayli was heard in the relevant court, concerning an incident where the accused was charged with assault occasioning actual bodily harm in company, as well as two instances of affray. The accused pleaded guilty to all charges. The court was required to determine the appropriate sentencing for the offences, taking into account the accused's rehabilitation efforts while on bail. The legal issues before the court included the appropriate penalties for the offences and whether the accused's rehabilitation efforts warranted a suspended sentence.

The court considered the nature and seriousness of the offences, as well as the accused's rehabilitation efforts while on bail. It was noted that the assault occasioning actual bodily harm in company was a serious offence, while the two instances of affray, while serious in their own right, were less severe than the first charge. The court found that the accused had made genuine efforts to rehabilitate themselves while on bail, which was a mitigating factor in their sentencing. As a result, the court determined that a suspended sentence was appropriate for the two charges of affray, while a full-time imprisonment sentence was necessary for the charge of assault occasioning actual bodily harm in company.

The court sentenced the accused to a full-time imprisonment term of 2 months and 13 days for the assault occasioning actual bodily harm in company charge. For the two charges of affray, the court imposed a term of imprisonment of 1 year and 6 months, which was to be suspended. The accused was also required to enter into a good behaviour bond for a period of 1 year and 6 months. This decision reflects the court's consideration of the seriousness of the offences and the accused's rehabilitation efforts while on bail.

Orders

Orders of the court

Assault occasioning actual bodily harm, in company – full time imprisonment for a term of 2 months and 13 days

Affray (aggregate sentence) – term of imprisonment for 1 year and 6 months – execution of sentence to be suspended – offender entered into good behaviour bond for 1 year and 6 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Kbayli [2017] NSWDC 197
Hearing dates:	17 November 2016, 3 and 8 March 2017
Date of orders:	08 March 2017
Decision date:	08 March 2017
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Assault occasioning actual bodily harm, in company – full time imprisonment for a term of 2 months and 13 days Affray (aggregate sentence) – term of imprisonment for 1 year and 6 months – execution of sentence to be suspended – offender entered into good behaviour bond for 1 year and 6 months
Catchwords:	CRIME – assault occasioning actual bodily harm in company and affray – one offence of assault occasioning actual bodily harm in company, contrary to s 59(2) – two offences of affray, contrary to s 93C – pleas of guilty – suspended sentence due to offender’s rehabilitation of offending behaviour whilst on bail
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Chambour; R v Khallouf (No 5) [2016] NSWDC 379 R v Dickinson [2004] NSWCCA 452 R v Hampton [1999] NSWCCA 341 R v Reid [2005] NSWCCA 309; (2005) 155 A Crim R 428 R v Watt (unreported, 2 April 1997, NSWCCA)
Category:	Sentence
Parties:	Crown Abraham Kbayli
Representation:	Counsel: R Rodger (Crown) GJ Jones (Offender) Solicitors: Solicitor for the ODPP (Crown) AKN & Associates (Offender)
File Number(s):	2013/271649
Publication restriction:	Nil