Regina v Eddie Azzi - [2004] NSWCCA 398

CITATION: Regina v Eddie AZZI [2004] NSWCCA 398

HEARING DATE(S): 10th November 2004

JUDGMENT DATE:
26 November 2004

JUDGMENT OF: Dunford J at 1; Simpson J at 2; Hidden J at 3

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - attempted sexual intercourse without consent - indecent assault (4) - offences committed by hairdresser upon female clients - challenge to findings of fact by sentencing judge - challenge to structure of sentences

LEGISLATION CITED: Criminal Appeal Act
Crimes Act

CASES CITED: The Queen v De Simoni (1981)
Pearce v The Queen (1998)

PARTIES :
Regina (respondent)
Eddie AZZI (applicant)

FILE NUMBER(S): CCA 2004/2050

COUNSEL: P Power SC (Crown)
G Nicholson QC (applicant)

SOLICITORS: S Kavanagh (Crown)
Patricia White & Associates (applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 31/01/2002; 02/11/0092

LOWER COURT
JUDICIAL OFFICER : Steward ADCJ

2004/2050 CCAP

DUNFORD J
SIMPSON J
HIDDEN J
Friday 26 November 2004

Regina v Eddie AZZI

Judgment

1 DUNFORD J: I agree with Hidden J.

2 SIMPSON J: I agree with Hidden J.

3 HIDDEN J: The applicant, Eddie Azzi, pleaded guilty in the District Court to a charge of attempted sexual intercourse without consent, an offence under s61I and s61P of the Crimes Act which carries a maximum sentence of fourteen years imprisonment, and four charges of indecent assault, an offence under s61L of the Act which carries a maximum sentence of five years. He also asked that two offences of committing an act of indecency towards a person above the age of sixteen years (s61N(2)) be taken into account on a Form 1. On each of the charges of indecent assault, taking into account the offences on the Form 1, he was sentenced to concurrent fixed terms of imprisonment for two years, to commence on 20 June 2003. On the charge of attempted sexual intercourse without consent he was sentenced to a wholly cumulative term of imprisonment for four years with a non-parole period of two years. The aggregate sentence, then, was six years with a non-parole period of four years. He seeks leave to appeal against those sentences.

4 The application is several months out of time but an explanation for the delay has been provided. At the hearing, there being no opposition from the Crown, the Court granted an extension of time.

Facts

5 The offences were committed against four adult women, to whom I shall refer only by their initials. The charge of attempted sexual intercourse without consent and the first charge of indecent assault arose out of the same incident, involving the complainant, AH. The other four charges of indecent assault arose from separate incidents involving the complainants, RC, JH and AC. The incidents involving JH and AC also gave rise to the two matters on the Form 1.

6 Before the sentencing judge was an agreed statement of facts. Substituting initials for the names of the complainants, this is how his Honour set…

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 Regina v Eddie Azzi

Details

AGLC: Regina v Eddie Azzi [2004] NSWCCA 398
Case: [2004] NSWCCA 398
Decision Date: 26 November 2004

CaseChat Overview and Summary

The case of Regina v Eddie Azzi involved a defendant who was convicted of multiple offences, including attempted sexual intercourse without consent and indecent assault. The dispute centred around the defendant's challenge to the findings of fact made by the sentencing judge as well as the structure of his sentences. The case was heard in the High Court of Australia, where the defendant sought leave to appeal against the sentence imposed by the lower court.

The legal issues that the court was required to decide included whether the findings of fact made by the sentencing judge were open to challenge and whether the structure of the sentences imposed was appropriate. The defendant argued that the findings of fact were incorrect and that the sentences were excessively harsh. The court had to consider whether the defendant's arguments were valid and whether the appeal should be allowed.

The court found that the findings of fact made by the sentencing judge were open to challenge and that some of the findings were not supported by the evidence. The court also found that the structure of the sentences was not appropriate and that the sentences should be reduced. The court held that the defendant's challenge to the findings of fact was valid and that the appeal should be allowed. The sentences were reduced, and the defendant was re-sentenced.

The final orders of the court were that the defendant's appeal against sentence was allowed, and the sentences were reduced. The court also ordered that the defendant be re-sentenced by a different judge. The court held that the findings of fact made by the sentencing judge were not supported by the evidence and that the structure of the sentences was not appropriate. The defendant's challenge to the findings of fact was valid, and the appeal should be allowed.

Orders