Citation: [2012] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 16 August 2012
Judges: Basten JA, Harrison J, Beech-Jones J
Background
Three brothers applied for leave to appeal against sentences imposed following their involvement in a violent group attack in Randwick on 2 September 2009. The attack targeted Waqas Ahmad, who was punched, kicked and dragged by a group of roughly ten males. A housemate, Awais Awan, was stabbed during the same incident, though none of the three applicants bore any responsibility for the stabbing.
One brother, Zeeshan, was convicted after a trial of assault in company occasioning actual bodily harm. The other two brothers, Shajeel and Noman, pleaded guilty to both assault in company occasioning actual bodily harm and affray. A fourth co-offender, Ibrar Ahmad (a cousin of the victim), was sentenced alongside the applicants, and the sentencing judge delivered a single ex tempore judgment covering all four.
The attack arose from a bitter dispute between Waqas Ahmad and his uncle's family over money. The three applicants were friends of Ibrar Ahmad, who had sided with his father in the dispute. The group planned the attack in advance, travelling in three cars to the victims' Randwick unit.
Legal Issues
The Court of Criminal Appeal was asked to resolve the following questions across the three appeals:
- Whether the sentencing judge drew impermissible inferences against Shajeel and Noman from material that was only admissible in the trial of Zeeshan and Ibrar Ahmad
- Whether the aggregate sentences imposed on Shajeel and Noman were disproportionate to their total criminality
- Whether the individual sentences were manifestly excessive or plainly unjust
- Whether the sentencing judge failed to properly consider each applicant's role in the offences
- Whether the sentencing judge failed to give adequate weight to subjective circumstances, including prospects of rehabilitation
- Whether irrelevant considerations were taken into account
Decision
The Court granted leave to appeal in each case but dismissed all three appeals, with Basten JA and Harrison J agreeing with the reasons of Beech-Jones J.
Noman and Shajeel: The Court found that the sentencing judge had, in the main, confined his findings to the Statement of Agreed Facts when sentencing these two applicants. The judge expressly excluded from consideration the stabbing of Awais Awan and any suggestion the applicants were aware of it. Some references to trial evidence about the full group's conduct and premeditation were scrutinised, but the Court found that the core factual findings, particularly regarding planning, were properly supported by the Agreed Facts. No impermissible use of extraneous material was established to a degree warranting appellate intervention.
Aggregate sentences: The Court examined whether the partially cumulative sentences for the affray and assault charges produced a combined result that was disproportionate. It found the aggregate was not unreasonable given the distinct nature of the two offences and the overall criminality involved. The level of premeditation, the organised nature of the attack, the number of participants, and the serious injuries sustained by the victim all supported the sentences imposed.
Zeeshan: The Court rejected each of his three grounds of appeal. His sentence of eighteen months (with a non-parole period of the same length) was not found to be manifestly excessive. The court noted that the sentencing judge had properly considered Zeeshan's subjective circumstances, including hardship to his wife and children, and had made a finding of special circumstances on that basis. The argument that his role was insufficiently distinguished from that of other co-offenders was also rejected. Because no error was demonstrated, there was no occasion to re-sentence Zeeshan, and fresh affidavit material tendered at the appeal hearing was not considered.
Orders Made
For each of the three applicants:
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing all three appeals, the Court of Criminal Appeal confirmed that a sentencing judge who hears multiple co-offenders together must carefully confine findings against plea-enterers to the facts admitted in their Agreed Facts, though not every reference to wider evidence will constitute a vitiating error.
- Where distinct offences arise from the same criminal episode, partial accumulation of sentences may be appropriate; the aggregate is assessed against the offender's total criminality, not merely the headline figure.
- A high degree of premeditation and planning in a group assault is a legitimate aggravating consideration under the Crimes (Sentencing Procedure) Act 1999, even where the offender did not initiate the dispute that motivated the attack.
- Hardship to a spouse and children caused by imprisonment ordinarily requires "exceptional circumstances" before it warrants an overall reduction in sentence, consistent with the principle endorsed in R v Edwards (1996) 90 A Crim R 510.
- No error was established where a sentencing judge acknowledged a co-offender's familial circumstances but concluded those circumstances did not rise to the level required to reduce the sentence, while still treating them as relevant to a finding of special circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1), 59(2), 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Case Conferencing Trial Act 2008 (NSW)
Cases:
- Apthorpe v R [2012] NSWCCA 100
- Browne v Dunn (1894) 6 R 67
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Greer v R [2011] NSWCCA 40
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
- O'Neil-Shaw v R [2010] NSWCCA 42
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- R v Edwards (1996) 90 A Crim R 510
- R v Elphick [2010] NSWCCA 112
- R v Hamze [2004] NSWCCA 423
- R v Mackay [2003] NSWCCA 87