Sarhene v R [2022] NSWCCA 79

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 [2004] NSWSC 446 R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122 R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 R v Speechley [2012] NSWCCA 130; (2012) A Crim R 175 Rotner v R [2011] NSWCCA 207 Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 Taitoko v R [2020] NSWCCA 43 TM v R [2008] NSWCCA 158 Vaiusu v R [2017] NSWCCA 71 Valenti v R [2016] NSWCCA 17 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Yildiz v R [2020] NSWCCA 69 Category: Principal judgment Parties: Benjamin Sarhene (Appellant) Regina (Respondent) Representation: Counsel: A Evers (Appellant) A Morris (Respondent)