R v Moustafa Mariam - [2012] NSWSC 1496

Supreme Court

New South Wales

Medium Neutral Citation: R v Moustafa Mariam [2012] NSWSC 1496
Hearing dates: 30 August; 9th November 2012
Decision date: 29 November 2012
Before: Latham J
Decision:
Convicted of Affray.
Taking into account the pre-sentence custody of one year 6 months 22 days offender is sentenced to a non parole period equal to that period to date from 7 May 2011 expiring 28 November 2012. Balance of term is 8 months and 9 days expiring 6 August 2013

Catchwords: CRIMINAL LAW â€“ sentencing â€“ guilty plea â€“ affray â€“ need for parity â€“ relevance of discharge of loaded firearms â€“ presence of bystanders at risk of serious injury â€“ evidence of planning and premeditation â€“ offence not in worst category â€“ limited role of offender â€“ need for general deterrence â€“ limited need for specific deterrence â€“ early plea â€“ reasonable prospects of rehabilitation
Cases Cited: Khanwaiz & Ors v R [2012] NSWCCA 168
R v Abdulhardi NSWSC 20 April 2012
R v Mariam [2012] NSWSC 1023
Stevens v R [2007] NSWCCA 152
Category: Sentence
Parties: Regina - (Crown)
Moustafa Mariam - (Offender)
Representation: Counsel
P Barrett - (Crown)
T Hoyle SC - (Offender)
Solicitors
Solicitor for Public Prosecutions - (Crown)
Matouk Joyner Lawyers - (Offehder)

File Number(s): 2010/96565

SENTENCE

The offender, Moustafa Mariam, pleaded guilty to Affray on 30 August 2012 for his part in the events of 25 June 2009 in a carpark at Milperra, where eleven young men gathered to settle a dispute between two opposing groups. The tragic consequences of that evening have already been the subject of sentences imposed upon this offender's older brother, Mahmoud Mariam (see R v Mariam [2012] NSWSC 1023). This offender stands to be sentenced on the basis of an agreed statement of facts that does not attribute to him any knowledge of the presence of firearms at the scene.

The offence of affray caries a maximum penalty of 10 years imprisonment. There are obvious considerations of parity at play, given the sentencing of a number of co-offenders for their part in the same affray. I have previously commented on the absence of any upward movement in relation to the range of sentences imposed for affray since the maximum penalty was doubled as and from 15 December 2005 ; R v Abdulhardi NSWSC 20 April 2012.

The Offence

At about 9pm on 25 June 2009, HEK was involved in a physical assault with Samir Mohamad at Bankstown's Centro shopping centre. AM 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 as a "dog".

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 El Kobaili group, as well as between members belonging to each group. During these telephone calls, arrangements were made to meet in order to pursue…

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 Moustafa Mariam

Details

AGLC: R v Moustafa Mariam [2012] NSWSC 1496
Case: [2012] NSWSC 1496
Decision Date: 29 November 2012

CaseChat Overview and Summary

The case of R v Moustafa Mariam involved the appellant who was found guilty of affray. The matter was heard in the Court of Appeal, which reviewed the sentence handed down by the trial judge. The appellant, represented by counsel, challenged the sentence on the basis that it was excessive, particularly when compared to co-offenders who had received lesser sentences. The Crown, represented by a prosecutor, argued that the sentence was appropriate given the nature of the offence and the need to deter others from engaging in similar conduct.

The central legal issues before the Court of Appeal were whether the trial judge had erred in failing to ensure parity in sentencing between the appellant and his co-offenders, and whether the sentence imposed adequately reflected the relevant considerations, including the discharge of loaded firearms, the presence of bystanders at risk of serious injury, the evidence of planning and premeditation, and the appellant's limited role in the offence. The Court also considered the importance of general and specific deterrence, the appellant's early guilty plea, and his reasonable prospects of rehabilitation.

In delivering the judgment, the Court of Appeal noted that while the discharge of loaded firearms and the presence of bystanders at risk of serious injury were significant factors, the offence did not fall into the worst category of affray. The Court emphasised that the appellant's role was limited and that there was evidence of planning and premeditation, which warranted a sentence that provided both general and specific deterrence. The early guilty plea and the appellant's prospects of rehabilitation were also considered, but the primary focus was on ensuring the sentence reflected the seriousness of the offence. Ultimately, the Court found that the trial judge had appropriately balanced these factors and did not consider the sentence to be manifestly excessive.

The Court of Appeal dismissed the appeal, affirming the sentence imposed by the trial judge. The Court held that the sentence was within the appropriate range and that the trial judge had adequately considered all relevant factors in arriving at the sentence. The Court underscored the importance of ensuring that sentences for similar offences are consistent and that the overarching principles of sentencing are applied fairly and reasonably.

Orders