R v Alkanaan [2009] NSWCCA 44

New South Wales Court of Criminal Appeal

CITATION: R v Alkanaan [2009] NSWCCA 44 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 February 2009 JUDGMENT OF: Grove J at 1; Buddin J at 26; Price J at 27

EX TEMPORE JUDGMENT DATE: 25 February 2009

DECISION: Crown appeal allowed. Respondent resentenced.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Inadequacy - Totality - Cumulation too little to reflect seriousness

LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED : Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 50 NSWLR 146

PARTIES: REGINA - Appellant Alaa ALKANAAN - Respondent

FILE NUMBER(S): CCA 2008/0709

COUNSEL: J Dwyer - Appellant R Burgess - Respondent

SOLICITORS: Solicitor for Public Prosecutions - Appellant Legal Aid Commission - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/21/0030

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

LOWER COURT DATE OF DECISION: 26 September 2008

IN THE COURT OF CRIMINAL APPEAL CCA 2008/0709

GROVE J BUDDIN J PRICE J

25 February 2009 R v Alaa ALKANAAN Judgment 1 GROVE J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 asserting the manifest inadequacy of sentence imposed on the respondent at Parramatta District Court. The respondent had been committed for trial from Burwood Local Court but on 25 July 2008 at a callover he pleaded guilty to a count of aggravated car jacking (count 1), a count of attempted aggravated car jacking (count 2), each of these being charged contrary to s 154C (2) of the Crimes Act 1900 and a count of maliciously discharging a loaded firearm with intent to cause grievous bodily harm (count 4 which was charged in the alternative to a count numbered 3) an offence contrary to s 33A (1) (as then applicable) of that Act. The maximum prescribed penalty for offence against either of these provisions is 14 years imprisonment. The circumstances of aggravation specified in count 1 were that the respondent was armed with an offensive weapon and was in company. The circumstance of aggravation in count 2 was that he was armed with an offensive weapon. 2 The learned sentencing judge was asked to take into account on a Form 1 a further offence of attempted aggravated car jacking; again the circumstances of aggravation were that he was armed with an offensive weapon and in company. Ellis DCJ sentenced the respondent, on count 1 and taking into account the offence on Form 1, to imprisonment consisting of a non-parole period of 4 years commencing on 1 May 2007 and expiring on 30 April 2011 with a balance term of 2 years; on count 2 to imprisonment consisting of a non-parole period of 1 year 9 months commencing on 1 February 2010 and expiring on 31 October 2011 with a balance term of 1 year 6 months and on count 4 to imprisonment consisting of a non-parole period of 12 months commencing on 1 May 2011 and expiring on 30 April 2012 with a balance term of 3 years commencing on 1 May 2012. 3 The effective total sentence amounted to imprisonment for 8 years with a non-parole period of 5 years. 4 The respondent has been in continuous custody since his arrest on 1 May 2007. The offence charged in count 1 took place on 23 April 2006 as did the offence taken into account on the Form 1. The offences charged in counts 2 and 4 occurred on 26 August 2006. 5 Subsequent to those dates, on 30 September 2006 the respondent was arrested at Belmore and charged with possessing an unauthorized firearm and discharging a firearm in or near a public place. He was convicted of those offences at Burwood Local Court on 26 April 2007 and, for the first offence he was fined $500 and ordered to enter into a recognizance with conditions to be of good behaviour for 18 months and, for the second offence, to perform 75 hours community service. 6 Shortly after those proceedings the respondent was taken into custody in respect of the current matters when he attended Bankstown Police Station on 1 May 2007. 7 On 20 August 2007 the respondent again appeared at Burwood Local Court where, upon conviction for driving in a manner dangerous, he was sentenced to imprisonment for a fixed term of 2 months to commence on 1 May 2007 and expire on 30 June 2007. On 13 March 2008 he was called up for breach of the recognizance entered on 26 April 2007 and for the offence involved he was sentenced to imprisonment for a fixed term of 3 months commencing on 8 January 2008. It follows that these impositions of 2 months and 3 months imprisonment respectively were served wholly concurrently with the sentence on count 1 later imposed in the District Court. 8 An agreed statement of facts signed by the respondent and by the solicitor representing the Director of Public Prosecutions, was tendered. A brief summary can be extracted therefrom. Chronologically the first offence was that taken into account on the Form 1. 9 At about 10 am on Wednesday 23 August 2006 Zena Vasiliou went to place some shopping in the boot of her car which was parked at the Roselands Centre. Her vehicle was a Subaru WRX. She saw the respondent and another male approaching her vehicle and entered the passenger's seat. As she tried to close the door the respondent took hold of it in order to prevent it being closed but Ms Vasiliou pulled hard and managed to close the door and she then applied the car locks. The respondent went to the driver's side window and was tapping on it with a pistol. The other male was standing next to him. Ms Vasiliou got into the driver's seat, started the car and quickly drove away. She saw the respondent waving his pistol. 10 Count 1 arose out of events at about 10.30 am on the same morning. Mr Majarres took his Ford Territory Ghia to a car wash in Belmore where he left it for attention. The car was washed and it was being dried by a staff member Mr Sayed. The respondent and another male approached the vehicle and the latter said to Mr Sayed, "If you don't get out of the car I'll blow your head off." The manager approached to see what was happening and the respondent produced a handgun and pointed it at him with his finger on the trigger. He said to the manager, "Get the fuck out of here." The manager and Mr Sayed moved away. The respondent entered the passenger's seat and his accomplice got into the driver's seat and drove away. As they were leaving the respondent pointed the firearm out of the passenger window and waved it at a staff member. 11 Counts 2 and 4 arose out of events three days later on 26 August 2006. At about 8.10 pm Mr Eter was driving his Subaru WRX along the Hume Highway at Bankstown. This vehicle incidentally was similar to that of Ms Vasiliou who had been accosted at Roselands. Mr Eter stopped at a red traffic control light. While he was there the Ford Territory which had been taken from the car wash three days previously, pulled up next to him. The respondent got out of that vehicle and walked around and opened Mr Eter's driver's door. The respondent was holding a firearm and told Mr Eter to get out of the car. Mr Eter accelerated away and the respondent discharged the firearm up to ten times in the direction of Mr Eter's vehicle. One of the projectiles fired by the respondent struck Mr Eter in the back in about the shoulder area. 12 The respondent returned to the Ford vehicle and entered the passenger's seat and it was driven away by a second male who was, at the time, wearing a facial disguise. Mr Eter contacted police and was conveyed to Liverpool Hospital where he was treated. A bullet was extracted and he was found to have sustained a superficial gunshot wound near his right shoulder. 13 Later that night police sighted the Ford Territory and a pursuit took place but police lost sight of it. A short time later police found the vehicle abandoned and gutted by fire. 14 The Crown submissions can be summarized as follows: