R v Abdisimi Hersi, R v Abdirazak Hersi [2010] NSWCCA 57

R v Abdisimi Hersi, R v Abdirazak Hersi [2010] NSWCCA 57

The sentences were manifestly inadequate because the offence was a serious robbery in company involving five offenders who chased, surrounded, terrorised and physically assaulted a lone pedestrian; the respondents were to be sentenced as participants in that joint criminal enterprise, not on unproved assumptions of minor participation; the sentencing judge gave excessive weight to subjective factors, failed adequately to mark objective seriousness and general deterrence, wrongly treated absence of lasting victim consequences as mitigating, and wrongly found exceptional circumstances for periodic detention for Abdisimi Hersi.

Jurisdiction
Australia
Judgment Date
15 April 2010
Procedural Posture
Crown Appeal Against Sentence / Appeal in the New South Wales Court of Criminal Appeal From Sentences Imposed in the District Court After Trial for Robbery in Company
Outcome
Appeals allowed; District Court sentences quashed; respondents resentenced to terms of imprisonment.
Legal Topics
['sentence' 'crown Appeal' 'manifest Inadequacy' 'robbery in Company' 'joint Criminal Enterprise' 'general Deterrence' 'guideline Judgment' 'exceptional Circumstances']
['criminal Law'] ['sentence' 'crown Appeal' 'manifest Inadequacy' 'robbery in Company' 'joint Criminal Enterprise' 'general Deterrence' 'guideline Judgment' 'exceptional Circumstances']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence / Appeal in the New South Wales Court of Criminal Appeal From Sentences Imposed in the District Court After Trial for Robbery in Company

Legal Issues

  1. 1 ['Whether the sentences imposed for robbery in company were manifestly inadequate.' 'Whether the sentencing judge erred by failing to assess objective seriousness and by giving undue weight to subjective circumstances.' 'Whether the sentencing judge misapplied the guideline judgment in R v Henry (1999) 46 NSWLR 346.' 'Whether exceptional circumstances justified periodic detention for Abdisimi Hersi.' 'Whether the sentencing judge failed to have proper regard to general and specific deterrence.' 'Whether absence of lasting consequences for the victim could be treated as a mitigating factor.']

Ratio Decidendi

The sentences were manifestly inadequate because the offence was a serious robbery in company involving five offenders who chased, surrounded, terrorised and physically assaulted a lone pedestrian; the respondents were to be sentenced as participants in that joint criminal enterprise, not on unproved assumptions of minor participation; the sentencing judge gave excessive weight to subjective factors, failed adequately to mark objective seriousness and general deterrence, wrongly treated absence of lasting victim consequences as mitigating, and wrongly found exceptional circumstances for periodic detention for Abdisimi Hersi.

Court Disposition

Appeals allowed; District Court sentences quashed; respondents resentenced to terms of imprisonment.

Orders

  • ['The appeals are allowed and the sentences imposed in the District Court are quashed.' 'Abdirazak Hersi is sentenced to a term of imprisonment consisting of a non-parole period of 3 years and a balance of term of 2 years. The sentence is to commence 20 August 2008 and the non-parole period to expire on 19 August...