Sahartor v The Queen - [2018] NSWCCA 236

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sahartor v R [2018] NSWCCA 236
Hearing dates: 3 August 2018
Decision date: 19 October 2018
Before: Basten JA at [1];
R A Hulme J at [24];
Hamill J at [33]
Decision:
(1) Grant the applicant leave to appeal against his conviction of being armed with a weapon with intent to commit an indictable offence, in contravention of s 114(1)(a) of the Crimes Act on 6 April 2017.

(2) Allow the appeal and quash the conviction and sentence imposed on 7 April 2017.
(3) Enter an acquittal to count 2 on the indictment dated 3 April 2017.
Catchwords: CRIME – conviction appeal – applicant convicted of being armed with weapon with intent to commit indictable offence of intimidation – applicant suspected of having attempted a break and enter at the victim’s premises – applicant relied on self-defence – whether conviction inconsistent with acquittal for break and enter – whether verdict unreasonable
Legislation Cited: Crimes Act 1900 (NSW), ss 33B, 114, 418
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
Cases Cited: Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272
King v The Queen (1986) 161 CLR 423; [1986] HCA 59
R v Mehar [2004] NSWCCA 355
R v RTB [2002] NSWCCA 104
R v Solomon [1980] 1 NSWLR 321
Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
Tran v The Queen (2000) 105 FCR 182
Category: Principal judgment
Parties: Michael Sahartor (Appellant)
Regina (Respondent)
Representation:
Counsel:
Ms A Francis (Appellant)
Ms A Mitchelmore (Respondent)
Solicitors:
Bannisters Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/73178
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 April 2017

Before:

Craigie DCJ

File Number(s):

2016/73178

Judgment

BASTEN JA: On 6 April 2017 the applicant, Michael Sahartor, was found guilty by a jury of one count of being armed with a weapon with intent to commit an indictable offence, in contravention of s 114(1)(a) of the Crimes Act 1900 (NSW). There had been a brief trial. On the following day, 7 April 2017, the trial judge, Craigie DCJ, convicted the applicant and sentenced him to a non-parole period of 13 months commencing on 8 March 2016 and expiring on 7 April 2017. The balance of the sentence (five months) expired on 7 September 2017.
By the time a notice of application for leave to appeal was filed on 1 May 2018 the sentence had expired. However, the applicant then remained in custody on an unrelated matter with respect to which he had sought leave to appeal. That appeal is not presently before the Court, but it is likely that, were he to succeed on his present application, the commencement date of any subsequent sentence might be affected.
The notice of appeal filed on 1 May contained two grounds challenging the conviction, one relating to a direction as to self-defence,…

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 Sahartor v The Queen

Details

AGLC: Sahartor v The Queen [2018] NSWCCA 236
Case: [2018] NSWCCA 236
Decision Date: 19 October 2018

CaseChat Overview and Summary

Sahartor appealed against his conviction for being armed with a weapon with intent to commit the indictable offence of intimidation. The applicant was suspected of having attempted a break and enter at the victim's premises and was charged with the offence of being armed with a weapon with intent to commit intimidation. Sahartor claimed self-defence as his defence. The appeal hinged on two key legal issues: whether the conviction for the armed intimidation offence was inconsistent with Sahartor's acquittal for the attempted break and enter, and whether the verdict was unreasonable given the evidence presented.

The court found that the conviction for armed intimidation was not inconsistent with the acquittal for the attempted break and enter. The court noted that Sahartor's presence at the scene with a weapon, despite his acquittal for the attempted break and enter, could still support a conviction for the intimidation charge. Furthermore, the court found that the jury's verdict was not unreasonable. The evidence presented, including the applicant's actions and statements, supported the conclusion that Sahartor had the intent to intimidate the victim with the weapon. The court held that the jury was entitled to reject Sahartor's self-defence claim and find him guilty as charged.

The appeal was dismissed. The court upheld the conviction for being armed with a weapon with intent to commit the offence of intimidation. The jury's verdict was found to be reasonable and supported by the evidence. The court did not find any error in the trial process that would warrant overturning the conviction.

Orders