Alesbhi v R; Esbhi v R [2018] NSWCCA 30

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Alesbhi v R; Esbhi v R [2018] NSWCCA 30 Hearing dates: 30 January 2018 Decision date: 09 March 2018 Before: Simpson JA at [1]; R A Hulme J at [2]; Hidden AJ at [106] Decision: 1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. Quash the sentences imposed in the District Court on 11 May 2017 and in lieu, sentence each offender to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years 6 months. The sentences are to date from 9 March 2017. The non-parole periods will expire on 8 September 2019 at which time the offenders will become eligible for release on parole. Catchwords: CRIME – appeal against sentence – severity – affray – fail to appear – applicants convicted of affray relating to bashing of two victims by group of ten men – applicants were told by interpreter that they would be facing a 10 year custodial sentence – after trial but before sentence was handed down both applicants fled to the Middle East for six months – both offences assessed by trial judge to be above the mid-range offence – each applicant sentenced to six years imprisonment – whether error in finding both offences were above mid-range – where Court of Criminal Appeal would impose fresh sentence – unnecessary to consider ground.

CRIME – appeal against sentence – severity – affray – whether judge erred by finding planning as an aggravating factor – where applicant was with ten other men who were armed at time of the melee –judge would have been in error if applying Crimes (Sentencing Procedure) Act s 21A(2)(n) – judge entitled to take into account limited planning under Crimes (Sentencing Procedure) Act 21A(1)(c) – ground rejected.