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

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

The sentencing judge erred by treating the affray as aggravated by the presence of children because the agreed facts did not establish beyond reasonable doubt that any child saw, heard, or was otherwise present for the affray in the relevant sense. That error required the Court to resentence the applicants. Limited planning could be taken into account as bearing on objective seriousness, even if s 21A(2)(n) was not engaged. The fail to appear offences were serious because the applicants fled overseas the day before sentence and remained absent for about six months, but their voluntary return knowing they would be taken into custody was a relevant favourable factor. The original starting...

Jurisdiction
Australia
Judgment Date
09 March 2018
Procedural Posture
Criminal Appeal Against Sentence / Applications for Leave to Appeal Against Aggregate Sentences Imposed in the District Court on 11 May 2017
Outcome
Leave to appeal granted; appeal allowed; District Court sentences quashed; each applicant resentenced to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years 6 months.
Legal Topics
['affray' 'fail to Appear' 'objective Seriousness' 'aggravating Factors' 'presence of Children' 'planning' 'aggregate Sentence' 'voluntary Return to Jurisdiction' 'special Circumstances' 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Procedure'] ['affray' 'fail to Appear' 'objective Seriousness' 'aggravating Factors' 'presence of Children' 'planning' 'aggregate Sentence' 'voluntary Return to Jurisdiction' 'special Circumstances' 'manifest Excess']

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Procedural Posture

Criminal Appeal Against Sentence / Applications for Leave to Appeal Against Aggregate Sentences Imposed in the District Court on 11 May 2017

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding the affray was aggravated by the presence of children.' 'Whether the sentencing judge erred in treating limited planning as an aggravating factor.' "Whether the applicants' voluntary return to Australia was relevant to sentence for the fail to appear offences." 'Whether limitations said to arise from s 168(3) of the Criminal Procedure Act 1986 (NSW) and s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) constrained the aggregate sentence.' 'Whether the aggregate sentences imposed were excessive and what fresh sentences should be imposed.']

Ratio Decidendi

The sentencing judge erred by treating the affray as aggravated by the presence of children because the agreed facts did not establish beyond reasonable doubt that any child saw, heard, or was otherwise present for the affray in the relevant sense. That error required the Court to resentence the applicants. Limited planning could be taken into account as bearing on objective seriousness, even if s 21A(2)(n) was not engaged. The fail to appear offences were serious because the applicants fled overseas the day before sentence and remained absent for about six months, but their voluntary return knowing they would be taken into custody was a relevant favourable factor. The original starting...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentences quashed; each applicant resentenced to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years 6 months.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal allowed.' '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...