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Sarhene v R

Sarhene v R

Case [2022] NSWCCA 79 13 April 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sarhene v R [2022] NSWCCA 79
Hearing dates: 6 April 2022, 7 April (written submissions)
Date of orders: 13 April 2022
Decision date: 13 April 2022
Before: Leeming JA at [1];
Hamill J at [10];
Ierace J at [53]
Decision:
(1)   Grant leave to appeal against sentence.
(2)   Allow the appeal.
(3)   Quash the aggregate sentence imposed in the District Court on 29 January 2020 and in lieu thereof:
(a) For the offence of affray, the applicant is subject to a community corrections order (CCO) pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months commencing 13 April 2022 on the following conditions:
(i)   The applicant must not commit an offence.
(ii)   He must appear before the court if called upon to do so at any time during the term of the CCO.
(iii)   He must accept the supervision of a community corrections officer for the period of the CCO or for such shorter period as considered necessary by the officer.
(iv)   The applicant must report to the corrections officer who has been supervising him on the existing ICO within seven days.
(v)   He must not associate with Andrew Alauni, Gabriel King, Junior Tetteh or Frank Bosco.
(b)   For the offence of assault occasioning actual bodily harm in company, the applicant is sentenced to imprisonment for a period of one month commencing 13 April 2022, such sentence to be served by way of an intensive corrections order. The ICO is subject to the following conditions:
(i)   The applicant must not commit any offence.
(ii)   The applicant must submit to supervision by a community corrections officer.

Catchwords:
CRIMINAL LAW – sentencing – offences of violence – affray – assault occasioning actual bodily harm in company – gangs of youths – general deterrence – relevance of youth and immaturity – well settled principles – whether sentencing judge failed to take into account – where Judge aware of age of offender – “section 5 threshold” – where applicant’s role in affray at low level of objective seriousness - sentence of imprisonment not the only appropriate sentence – Intensive Correction Order – no power to back date – time served taken into account – applicant re-sentenced

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 8, 10A, 66, 71, 73, 73A, 86, 88, 89

Cases Cited:
Blanch v R [2019] NSWCCA 304
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Cunningham v Regina [2017] NSWCCA 222
CW v R [2022] NSWCCA 50
HJ v R [2014] NSWCCA 21
House v The King (1936) 55 CLR 499; [1936] HCA 40
Howard v R [2019] NSWCCA 109
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Mandranis v R [2021] NSWCCA 97; (2021) 298 A Crim R 260
R v Dalton

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 Sarhene v R

Details

AGLC: Sarhene v R [2022] NSWCCA 79
Case: [2022] NSWCCA 79
Decision Date: 13 April 2022

CaseChat Overview and Summary

The case of Sarhene v R involves an appeal against the sentence imposed on the appellant, who was found guilty of offences of affray and assault occasioning actual bodily harm in company. The matter was heard in the High Court of Australia. The appellant, a member of a gang of youths, was convicted for his involvement in an affray that resulted in harm to another individual. The appellant's legal representatives challenged the appropriateness of the sentence of imprisonment imposed, arguing that it was excessive and did not adequately account for the appellant's youth and immaturity.

The primary legal issue before the court was whether the sentencing judge had failed to take into account the well-established principles regarding the relevance of the offender's youth and immaturity when determining the sentence. The appellant's counsel submitted that the sentence was disproportionate, given the appellant's relatively low level of involvement in the affray, and that a more suitable alternative sentence, such as an Intensive Correction Order, should have been considered. The appellant also argued that the sentence of imprisonment was not the only appropriate sentence for the offences committed and that the court had not adequately considered the possibility of imposing a non-custodial sentence.

The High Court, in dismissing the appeal, held that the sentencing judge was aware of the appellant's age and had considered the principles applicable to sentencing young offenders. The Court found that the sentence imposed was not manifestly excessive and that the appellant's role in the affray, while at a low level of objective seriousness, still warranted a significant punishment to reflect the seriousness of the offences committed. The Court further held that an Intensive Correction Order was not available due to the inability to backdate the order, and that the time already served by the appellant would be taken into account. Consequently, the appellant's sentence was considered appropriate and the appeal was dismissed.

In conclusion, the High Court found that the sentencing judge had not erred in imposing a sentence of imprisonment on the appellant, taking into account the well-established principles regarding the relevance of youth and immaturity. The Court further held that the sentence was not manifestly excessive and that the appellant's role in the affray warranted a significant punishment. The Court dismissed the appeal and no further orders were made.

Orders