Ali v R [2011] NSWCCA 184

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ali v R [2011] NSWCCA 184 Hearing dates: 14 July 2011 Decision date: 15 August 2011 Jurisdiction: Common Law - Criminal Before: Bathurst CJ at 1 Buddin J at 2 Harrison J at 3 Decision: 1. Grant the applicant leave to appeal. 2. Appeal allowed in part. 3. Quash the sentence in relation to count 2 and in lieu thereof impose a non-parole period of 9 months to date from 16 November 2010 and to expire on 15 August 2011. The head term of 18 months in respect of that count is confirmed. The first day on which the applicant is due for release is 15 August 2011. Catchwords: CRIMINAL LAW - severity appeal - whether sentence manifestly excessive - where sentencing judge found "special circumstances" - where sentence failed to give effect to that finding - non-parole period reduced by 2 months Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Principal judgment Parties: Alzaid Ali (Applicant) Crown (Respondent) Representation: F Veltro (Crown) S Kavanagh (Solicitor for Public Prosecutions) File Number(s): 2009/217585 Decision under appeal Before: Ashford DCJ File Number(s): 2009/217585

Judgment 1BATHURST CJ : I agreed with the orders made by the Court on 14 July 2011 for the reasons provided below by Harrison J. 2BUDDIN J : For the reasons given by Harrison J, I joined in the orders made by the Court on 14 July 2011. 3HARRISON J : The applicant, who appeared in this Court unrepresented, seeks leave to appeal against sentences imposed on him by her Honour Ashford DCJ on 15 December 2010. At the end of the hearing of the application the Court made the following orders: 1. Grant the applicant leave to appeal. 2. Appeal allowed in part. 3. Quash the sentence in relation to count 2 and in lieu thereof impose a non-parole period of 9 months to date from 16 November 2010 and to expire on 15 August 2011. The head term of 18 months in respect of that count is confirmed. The first day on which the applicant is due for release is 15 August 2011. 4My reasons for joining in these orders are as follows. 5The applicant had pleaded guilty to two counts of reckless wounding and one count of being an accessory after the fact to the discharge of a firearm with intent to cause grievous bodily harm. He was sentenced on the accessory count to a fixed term of 6 months imprisonment from 16 February 2010 expiring on 15 August 2010. On the reckless wounding of the first victim he was sentenced to a non-parole period of imprisonment of 15 months from 16 May 2010 expiring on 15 August 2011 with a balance of term of 5 months commencing on 16 August 2011 expiring on 15 January 2012. On the reckless wounding of the second victim he was sentenced to a non-parole period of imprisonment of 11 months from 16 November 2010 expiring on 15 October 2011 with a balance of term of 7 months from 16 November 2011 expiring on 15 May 2012. The applicant was sentenced to an effective total term of 2 years and 3 months commencing on 16 February 2010 and expiring on 15 May 2012 and an effective non-parole period of 1 year and 8 months from 16 February 2010 expiring on 15 October 2011. 6The applicant relied upon the following grounds of appeal: 1. The learned sentencing Judge erred in the manner in which she discounted the sentences for the utilitarian value of the applicant's pleas of guilty. (a) The learned sentencing Judge erred in giving regard to the timing of the guilty plea entered when assessing the utilitarian value of the guilty plea. (b) The learned sentencing Judge erred in not allowing an appropriate discount for the utilitarian value of the pleas of guilty. 2. The learned sentencing Judge erred in her approach to the application of the Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A and 44. (a) Her Honour erred when she found aggravating factors under s 21A(3)(d) and (j). (b) Her Honour erred by sentencing for specific deterrence for this offence under s 3A. (c) Her Honour erred by granting special circumstances under s 44(2) but failed to act upon her finding. 3. The learned sentencing Judge erred in her approach and application to the applicant's sentences. (a) Her Honour erred when she failed to backdate the sentences to the date the applicant was taken into custody. (b) Her Honour erred when she failed to order the sentences to be served concurrently. (c) Her Honour erred when she found no evidence of knife injury to Hassan Al Jebori, which formed the basis for count 2, but imposed a sentence notwithstanding her finding. 4. The learned sentencing Judge erred when she considered all possible alternatives to imprisonment by finding counsel for the accused did not submit to the contrary. 5. The sentences are manifestly excessive. 7The offences of reckless wounding carry a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years. The accessory after the fact offence carries a maximum penalty of 5 years imprisonment with no standard non-parole period.