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

Alesbhi v R; Esbhi v R [2018] NSWCCA 30 · Read the judgment on AustLII

Catchwords: Aggravating factors on sentence – presence of child

The CCA has held that for an offence to be aggravated by the presence of a child requires the court to be satisfied, beyond reasonable doubt, that the child was physically present and aware of the offence. The extent of aggravation, if any, requires an assessment of the likelihood of the effect the offence would have had on the child, having regard to all the circumstances including the child’s age.

The victims’ dog got out of their yard and ran across the road. One of the victims yelled out to it ‘Get back you mongrel dog’. Coincidentally, one of the applicants was driving by, believed that the comment was intended for him, and got into an argument with the man who had yelled out. That argument initially subsided; the victim went back inside his house and the applicant drove away. But the applicant then returned, as one of a group of about 10 men who looked Middle Eastern (two of which were the applicants). The assailants were variously armed with bats, a knife, a Taser-like device, and other items – one of the applicants was apparently brandishing a plastic bucket by way of weapon. There was an outbreak of violence and yelling, and damage was done to a car in the driveway. One of the victims was struck with the bucket and then with other items; another victim was punched for defending the first; bricks were thrown; the Taser-like item was brandished offensively, as was the knife. Each of the two main victims received a range of injuries mostly in the nature of soft tissue injuries like bruising, other than one laceration which needed sutures. Importantly for this summary, throughout the incident there were apparently children inside the home of the victims. The applicants were charged with affray. Mr Alesbhi was sentenced to 6 years with a non-parole period of 4 years 6 months, and Mr Eshbi was sentenced to imprisonment for 6 years with a non-parole period of 3 years, 7 months. Section 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that an offence is aggravated if it occurs in the presence of a child under 18. On sentence, the sentencing judge took the children’s presence into account as an aggravating factor. Each man appealed his sentences on a range of grounds; this summary only deals with the ‘presence of children’ issue.

The CCA (RA Hulme JA; Simpson JA and Hidden AJ agreeing) allowed the appeals and resentenced each man to 4 years with a non-parole period of 2 years 6 months.

Although the mere presence of a child could be sufficient, prior authority holds that the offence is mainly aimed at the ‘deleterious effect’ that witnessing a crime – particularly a violent crime – might have on the emotional wellbeing of a child, or on the child’s ‘moral values’. However, whether the presence of a child aggravates in a particular case (and the extent it should have on the sentence) will depend on the nature of the offence and the likelihood that he child would be affected, having regard to factors including the child’s age (at [53]). Thus, error was found in an earlier case where a child was present but asleep, and in another case where there was doubts about whether the child was in fact present or witnessed a number of assaults (at [54]). In this case, the children were said to be inside the home, but the affray was outside, and there was no evidence about whether they were aware something was going on; they could have been out of sight and hearing, or they could have been very young and asleep. Thus there was no basis to conclude beyond reasonable doubt that they were present (at [55]-[56]).