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Aboud v R

Aboud v R

Case [2017] NSWCCA 140 23 June 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Aboud v R [2017] NSWCCA 140
Hearing dates: 16 June 2017
Date of orders: 23 June 2017
Decision date: 23 June 2017
Before: Macfarlan JA at [1]
Johnson J at [2]
Harrison J at [3]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against severity of sentence – offences of using a carriage service to menace, harass or offend or doing so to procure or groom a child under the age of 16 years for sex – whether sentencing judge erred in approach to the delay in prosecuting the applicant – whether sentencing judge erred in approach to setting the non-parole period – whether a non-parole period of 75 percent of the total sentence can be regarded as punitive – whether such a ratio was open to the sentencing judge – whether sentencing judge failed to take account of the extent to which the applicant assisted and co-operated with authorities
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Cases Cited: Afiouny v R [2017] NSWCCA 23
Bick v R [2006] NSWCCA 408
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Griffiths v R (1989) 167 CLR 372; [1989] HCA 39
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lam v R; Le v R (2014) 241 A Crim R 562; [2014] WASCA 114
Ly v R [2007] NSWCCA 28
R v Acosta [1999] NSWCCA 334
R v Buhar (NSWCCA, 14 October 1998, unrep)
R v Paull (1990) 20 NSWLR 427
R v Todd [1982] 2 NSWLR 517
Sabra v R [2015] NSWCCA 38
Category: Principal judgment
Parties: Michael Aboud (Applicant)
Regina (Crown)
Representation:
Counsel:
R Wilson (Applicant)
L Fernandez (Crown)
Solicitors:
Legal Aid Commission of NSW (Applicant)
Office of the Director or Public Prosecutions (Respondent)

File Number(s): 2015/100797
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales at Lismore

Jurisdiction:

Criminal

Date of Decision:

29 July 2016

Before:

Wells DCJ

File Number(s):

2015/100797

Judgment

MACFARLAN JA: I agree with Harrison J.
JOHNSON J: I agree with Harrison J.
HARRISON J: Michael Aboud seeks leave to appeal against the severity of a sentence imposed upon him in the District Court of New South Wales at Lismore by her Honour Wells DCJ on 29 July 2016. Mr Aboud had pleaded guilty to a series of offences contrary to s 474.17(1), s 474.26(1) or s 474.27(1) of the Criminal Code (Cth) of either using a carriage service to menace, harass or offend or doing so to procure or groom a child under the age of 16 years for sex. All offences were alleged to have been committed between 2 January 2011 and 18 July 2011. Her Honour sentenced Mr Aboud to an overall effective sentence of 7 years with a non-parole period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aboud v R

Details

AGLC: Aboud v The Queen [2017] NSWCCA 140
Case: [2017] NSWCCA 140
Decision Date: 23 June 2017

CaseChat Overview and Summary

The case of Aboud v R involved an appeal against the severity of a sentence handed down by a sentencing judge. The applicant, Aboud, was convicted of using a carriage service to menace, harass or offend, and of using such a service to procure or groom a child under the age of 16 for sex. Aboud sought to appeal on the basis that the sentencing judge erred in two primary respects: the approach taken to the delay in prosecuting him, and the approach taken to setting the non-parole period of his sentence. Aboud argued that the non-parole period, which was set at 75 percent of the total sentence, could be regarded as punitive and was not an appropriate ratio for such a sentence. Additionally, he contended that the sentencing judge failed to adequately consider the extent to which he had assisted and co-operated with authorities.

The court had to determine whether the sentencing judge erred in the approach taken to the delay in prosecuting Aboud, and if so, whether this error was substantial enough to warrant a new sentencing hearing. The court also needed to decide whether a non-parole period of 75 percent of the total sentence was punitive and whether such a ratio was open to the sentencing judge. Furthermore, the court had to examine whether the sentencing judge failed to take into account the extent to which Aboud had assisted and co-operated with authorities, and if this oversight affected the fairness and proportionality of the sentence.

The court concluded that the sentencing judge did not err in the approach taken to the delay in prosecuting Aboud, and that the delay was properly considered. Regarding the non-parole period, the court found that a 75 percent ratio was not inherently punitive, and was within the sentencing judge's discretion. The court also held that the sentencing judge had indeed considered the extent to which Aboud had assisted and co-operated with authorities, and that this factor had been appropriately weighed in the overall sentencing process. As a result, the appeal was dismissed, and the original sentence stood.

The final orders of the court were that the appeal against the severity of sentence was dismissed, and that the original sentence, including the non-parole period, was upheld.

Orders