R v Mazaydeh - [2014] ACTSC 325

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Mazaydeh
Citation:	[2014] ACTSC 325
Hearing Date(s):	13 November 2014
DecisionDate:	13 November 2014
Before:	Murrell CJ
Decision:	Three year good behaviour order. Fines imposed. See [24] – [26].
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence after trial – assault occasioning actual bodily harm – common assault – threat to cause property damage – domestic violence
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 13, 14(4)
Cases Cited:	R v Bell [2005] ACTSC 123 R v Dunn (2004) 144 A Crim R 180 R v Edigarov (2001) 125 A Crim R 551 R v Mazaydeh (No 1) [2014] ACTSC 279 R v Mazaydeh (No 2) [2014] ACTSC 291
Parties:	The Queen (Crown) Mohamed Mazaydeh (Offender)
Representation:	Counsel Ms A Begley (Crown) Mr A Hopkins (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender)
File Number(s):	SCC 3 of 2014; SCC 223 of 2014

MURRELL CJ:

Background

After a trial before me sitting as a judge alone, the offender was found guilty of one count of assault occasioning actual bodily harm, three counts of common assault and one count of threatening to cause damage to the complainant's property (her cat).

The maximum available penalties are, five years' imprisonment for assault occasioning actual bodily harm, two years' imprisonment for common assault, and two years' imprisonment and/or a fine for threat to cause damage to property. I note that s 14(4) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) enables the Court to make a fine order, whether or not an offence is otherwise expressly punishable by a fine.

The facts are set out in the earlier decisions and I will not repeat them: R v Mazaydeh (No 1) [2014] ACTSC 279, R v Mazaydeh (No 2) [2014] ACTSC 291.

Objective Seriousness

The assault occasioning actual bodily harm was a very forceful and frightening assault on the victim that involved the offender taking hold of the victim’s throat. Understandably, the offence has had a very significant psychological impact on the victim. The strength with which the offender applied force to the victim's neck was evidenced by the symptoms that the victim suffered 24 hours after the incident when she spoke to Dr Parekh. As Dr Parekh said, “compression of the neck is a potentially life-threatening act”.

In this case, the assault occasioning actual bodily harm involved considerable violence. It is true that the nature of the actual bodily harm that was occasioned was at the lower end. Twenty four hours after the event, the victim was experiencing symptoms, but no visible effect of the assault. For example, there was no visible bruising.

On the one hand the conduct was extremely serious; on the other hand the actual bodily harm that resulted was not. However, as I have mentioned, the incident had considerable psychological impact, as was no doubt designed to be the case.

The first common assault occurred during the period when 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 Mazaydeh

Details

AGLC: R v Mazaydeh [2014] ACTSC 325
Case: [2014] ACTSC 325
Decision Date: 13 November 2014

CaseChat Overview and Summary

The defendant, Mazaydeh, appealed against the sentence imposed by the Magistrates’ Court of Victoria for a number of criminal offences. The charges included assault occasioning actual bodily harm, common assault, and threat to cause property damage, all in the context of domestic violence. The matter was heard in the Court of Appeal of the Supreme Court of Victoria.

The court was required to consider the principles of sentencing for the offences committed, the defendant's criminal history, and the impact of domestic violence on the sentencing process. The appeal centred on whether the original sentence was manifestly excessive or inadequate, and whether the sentencing judge had properly considered the relevant statutory and common law principles.

The Court of Appeal found that the sentence was not manifestly excessive but acknowledged that the sentencing judge had not fully considered the impact of domestic violence on the defendant and the victim. The court noted that while the defendant's criminal history was a significant aggravating factor, the impact of domestic violence warranted a more nuanced approach. The appeal was partially upheld, and the matter was remitted to the Magistrates’ Court for resentencing. The Magistrates’ Court subsequently imposed a three-year good behaviour order, along with fines.

The final orders of the Court of Appeal included the remittal of the matter to the Magistrates’ Court for resentencing, taking into account the specific impact of domestic violence. The Magistrates’ Court imposed a three-year good behaviour order and fines as outlined in the reasons for judgment.

Orders

Orders of the court

Three year good behaviour order. Fines imposed. See [24] – [26].

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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