Hraichie v R [2022] NSWCCA 155

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hraichie v R [2022] NSWCCA 155 Hearing dates: 30 May 2022 Date of orders: 13 July 2022 Decision date: 13 July 2022 Before: Beech-Jones CJ at CL at [1] R A Hulme J at [118] N Adams J at [149] Decision: In relation to proceedings No 2016/277456 and 2016/108074: (1) Grant the applicant leave to appeal; (2) Allow the appeal in part; (3) Set aside the aggregate sentence imposed for the offence of wound with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW) and inflict grievous bodily harm with intent to do the same contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) and, in lieu thereof: (a) Sentence the appellant to an aggregate term of imprisonment of 16 years and 6 months commencing on 19 March 2022 and expiring on 18 September 2038; (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 12 years and 4 months' imprisonment expiring on 18 July 2034; (c) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are: (i) 8 years and 7 months' imprisonment with a non-parole period of 6 years and 6 months for the offence under s 27 of the Crimes Act 1900 (NSW). (ii) 13 years and 7 months' imprisonment with a non-parole period of 10 years and 2 months for the offence under s 33(1)(b) of the Crimes Act 1900 (NSW). (4) Vary the commencement date of the sentence imposed for the offence under s 101.6(1) of the Criminal Code (Cth) so that it commences on 19 July 2029 with the non-parole period of 15 years expiring on 18 July 2044 and the balance of term of five years expiring on 18 July 2049. (5) Appeal otherwise dismissed. In relation to proceedings No 2018/281246: (1) Grant the applicant leave to appeal; (2) Allow the appeal. (3) Set aside the aggregate sentence imposed for the offences under s 61 and s 86(2)(b) of the Crimes Act 1900 (NSW) and, in lieu thereof: (a) Sentence the appellant to an aggregate term of imprisonment of 8 years and 3 months commencing on 19 July 2043 and expiring on 18 October 2051. (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 3 years and 3 months' imprisonment expiring on 18 October 2046. (c) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are: (i) Imprisonment for 1 year for the offence under s 27 of the Crimes Act 1900 (NSW); (ii) 8 years' imprisonment for the offence under s 86(2)(b) of the Crimes Act 1900 (NSW). (4) The applicant will be first eligible for release on parole on 19 October 2046. Catchwords: CRIMINAL LAW – sentence appeal – offences committed in custody – attacked fellow prisoner – carved ISIS slogan into forehead – wound with intent to kill – inflict grievous bodily harm with intent – committed acts in preparation to commit a terrorism offence – planned attack on corrective services officers – encouraged attacks by others – wrote threatening letter to Commissioner for Corrective Services – long sentences imposed – mostly accumulated – Crimes (Sentencing Procedure) Act s 56 – whether sentencing judge failed to consider entire length of time in custody – rejected – whether aggregate sentence for attack on inmate involved too little consideration of totality principle – whether manifestly excessive – ground upheld – whether accumulation between sentences excessive – rejected – applicant resentenced for attack on inmate – further offence in custody – attempted "exorcism" of inmate – assault – detain for advantage – aggregate sentence imposed – sentencing judge informed of incorrect maximum sentence – error found – whether sentencing judge erred in applying s 56 of Sentencing Act – whether at time applicant committed offence on 15 May 2017 he was "a convicted inmate of a correctional centre" – non-parole period expired but not released as refused bail – held not convicted inmate – error found – applicant resentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth) Cases Cited: Andreata v R [2015] NSWCCA 239 Atai v R [2020] NSWCCA 302 Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426; [2022] HCA 13 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 BJS v R [2013] NSWCCA 123 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 GS v R [2016] NSWCCA 266 House v The King (1936) 55 CLR 499 JM v R [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Noonan v R [2021] NSWCCA 35 PD v R [2012] NSWCCA 242 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Alou (No 4) [2018] NSWSC 221 R v Brown [2012] NSWCCA 199 R v Fyffe [2002] NSWSC 751 R v Hraichie (No 3) [2019] NSWSC 973 R v Jeremiah [2016] NSWCCA 241 R v MAK; R v MSK (2006) 167 A Crim R 15; [2006] NSWCCA 381 R v Rossi (Court of Criminal Appeal SA, 20 April 1988, unrep) R v Windle [2012] NSWCCA 222 Vaughan v R [2020] NSWCCA 3 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Bourhan Hraichie (Applicant) Regina (Crown) Representation: Counsel: Mr P Boulten SC; Ms C Akthar (Applicant) Ms S Callan SC; G Westgarth (Crown)