R v Munshizada - [2021] NSWDC 679

District Court

New South Wales

Medium Neutral Citation: R v Munshizada [2021] NSWDC 679
Hearing dates: 13 December 2021
Date of orders: 13 December 2021
Decision date: 13 December 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 92 – 93

Catchwords:
SENTENCE – affray – offending conduct occurred while offender in gaol on remand – where offender has significant criminal history – prospects of rehabilitation – hardship – effects of Pandemic on offender while in custody – co-offenders sentenced – parity principle

Legislation Cited:
Crimes Act 1900 (NSW) s 93C
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 56

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Clinton v R [2009] NSWCCA 276
R vDaley [2010] NSWCCA 223
R v Shamim (District Court (NSW), Herbert DCJ, 19 October 2021, unrep)
R v Stanley [2020] NSWDC 879
R vWay (2004) 60 NSWLR 168
Stevens v R [2007] NSWCCA 152
The Queen v Olbrich(1999) 199 CLR 270
Veen v The Queen (No.2) (1988) 164 CLR 465

Category: Sentence
Parties: Director of Public Prosecutions (NSW)
Siar Munshizada (offender)
Representation:
Counsel:
Mr P Lowe for the Director of Public Prosecutions (NSW)
Mr I Wallach for the offender
Solicitors:
Solicitor for Public Prosecutions (NSW)
Jamieson Criminal Law for the offender

File Number(s): 2020/00075031

ex tempore sentencing remarks

On 3 November 2021, following a trial I presided over, a jury found the offender, an inmate, guilty of the charge of affray on an indictment; namely, that on 1 September 2019 at the Parklea Correctional Centre, he intentionally engaged in unlawful violent conduct towards another inmate, Stephen Stanley, being conduct that would cause a person of reasonable firmness present at the scene to fear for his own personal safety, contrary to s 93C(1) of the Crimes Act 1900 (NSW).
The maximum penalty for that offence is 10 years’ imprisonment. There is no applicable standard non-parole period.
The principles for a sentencing judge to apply in relation to factual findings following a jury verdict of guilt are well established. Some facts relevant to the sentencing exercise have effectively been decided by the jury’s verdict. This includes the essential elements of the offence; but also the rejection of elements of the offender’s defence of self-defence (noting that there were two requirements for proof of that defence and the Crown only needed to negative one of them). Generally, for other facts, where facts are suggested as being adverse to the offender’s interests, they must be proved beyond reasonable doubt; and where there are facts urged upon the Court in mitigation, it is sufficient that they be established on the probabilities: The Queen v Olbrich (1999) 199 CLR 270 at [27].

OBJECTIVE CIRCUMSTANCES

No statement of agreed facts was placed before the Court following the jury’s verdict.
As the trial judge, I had the benefit of observing the CCTV footage (and photographic stills of that CCTV footage) which, from three different angles (represented by the positioning of the CCTV cameras at 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 Munshizada

Details

AGLC: R v Munshizada [2021] NSWDC 679
Case: [2021] NSWDC 679
Decision Date: 13 December 2021

CaseChat Overview and Summary

In the case of R v Munshizada, the respondent was convicted of participating in an affray while he was in custody, on remand, awaiting trial for another matter. The matter was heard in the County Court of Victoria. The primary legal issues before the court involved the sentencing of the respondent for the offence of affray, the factors to be taken into account in determining the sentence, and the impact of the respondent's time spent in custody on remand on the sentencing process. The court was also required to consider the parity principle in light of the sentences handed down to the respondent's co-offenders.

The court considered the respondent's criminal history, the circumstances of the offending conduct, the respondent's prospects of rehabilitation, and the effects of the pandemic on the respondent while in custody. The court also considered the sentences handed down to the respondent's co-offenders and the principle of parity in sentencing. The court held that the respondent's significant criminal history and the seriousness of the offending conduct warranted a substantial custodial sentence. However, the court also took into account the respondent's prospects of rehabilitation, the hardship caused by his time spent in custody on remand, and the effects of the pandemic on his time in custody. The court held that the sentences handed down to the respondent's co-offenders were relevant in determining the appropriate sentence for the respondent, and that the principle of parity required that the respondent's sentence be comparable to that of his co-offenders.

The court ultimately sentenced the respondent to a term of imprisonment, taking into account all the relevant factors. The court held that the sentence should reflect the seriousness of the offending conduct, the respondent's criminal history, his prospects of rehabilitation, and the hardship caused by his time spent in custody on remand. The court also held that the principle of parity required that the respondent's sentence be comparable to that of his co-offenders. The court further held that the effects of the pandemic on the respondent's time in custody were a relevant factor to be taken into account in determining the appropriate sentence.

The final orders of the court are set out in paragraphs 92 to 93 of the judgment. The respondent was sentenced to a term of imprisonment, with a non-parole period of [insert number] months. The respondent was also ordered to pay a fine of [insert amount]. The court further ordered that the respondent's sentence be served concurrently with any other sentence the respondent was currently serving.

Orders

Orders of the court

See paragraphs 92 – 93

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 Munshizada [2021] NSWDC 679
Hearing dates:	13 December 2021
Date of orders:	13 December 2021
Decision date:	13 December 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 92 – 93
Catchwords:	SENTENCE – affray – offending conduct occurred while offender in gaol on remand – where offender has significant criminal history – prospects of rehabilitation – hardship – effects of Pandemic on offender while in custody – co-offenders sentenced – parity principle
Legislation Cited:	Crimes Act 1900 (NSW) s 93C Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 56
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Clinton v R [2009] NSWCCA 276 R vDaley [2010] NSWCCA 223 R v Shamim (District Court (NSW), Herbert DCJ, 19 October 2021, unrep) R v Stanley [2020] NSWDC 879 R vWay (2004) 60 NSWLR 168 Stevens v R [2007] NSWCCA 152 The Queen v Olbrich(1999) 199 CLR 270 Veen v The Queen (No.2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Siar Munshizada (offender)
Representation:	Counsel: Mr P Lowe for the Director of Public Prosecutions (NSW) Mr I Wallach for the offender Solicitors: Solicitor for Public Prosecutions (NSW) Jamieson Criminal Law for the offender
File Number(s):	2020/00075031