Aboud v The Queen - [2020] NSWSC 1648

Supreme Court

New South Wales

Medium Neutral Citation: Aboud v R [2020] NSWSC 1648
Hearing dates: On the papers
Decision date: 20 November 2020
Jurisdiction: Common Law
Before: Button J
Decision:
Pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the whole case is referred to the Court of Criminal Appeal, to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW)

Catchwords:
CRIMINAL LAW – application for inquiry into sentence – Part 7 of the Crimes (Appeal and Review) Act 2001 – federal 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 – appeal rights exhausted – consideration of possible Xiao error – referral made

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), s 79(2)

Cases Cited:
Aboud v R [2017] NSWCCA 140
Diaz v R [2019] NSWCCA 216
Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1

Category: Principal judgment
Parties: Michael Aboud (Applicant)
Regina (Respondent)
Representation:
Counsel:
T D Anderson (Applicant)
E Amparo, Solicitor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/247547

Judgment

Introduction

This is an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for an inquiry into the sentence imposed on Michael Aboud (the applicant) by Judge Wells SC in the District Court at Lismore, and from which the Court of Criminal Appeal has previously dismissed an appeal: see Aboud v R [2017] NSWCCA 140.
The application is based upon the current understanding of the law arising from the decision in Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1. That decision established, in a nutshell, that a court is entitled to take into account the utilitarian value of a guilty plea when sentencing for Commonwealth offences.
The applicant contends that there is a patent error demonstrated in the sentencing judgment in the District Court in 2016, in that the learned sentencing judge failed to take into account the utilitarian value of the guilty pleas of the applicant. Nor did the Court of Criminal Appeal do so in its analysis of the matter. The approaches taken at first instance and on appeal were simply in accordance with the understanding of the law at that time.
On that straightforward basis, the applicant seeks a referral of his whole case to the Court of Criminal Appeal to be dealt with as a further appeal against sentence.
Because of the simplicity of the point, and because the Commonwealth Director of Public Prosecutions (CDPP) does not oppose the referral, I shall be brief indeed.

Background

On 15 March 2016, the applicant pleaded guilty in the Local Court at Lismore to the following six offences: four charges of using a carriage service to groom a person under the age of 16 for sex, a further charge of using a carriage…

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 The Queen

Details

AGLC: Aboud v The Queen [2020] NSWSC 1648
Case: [2020] NSWSC 1648
Decision Date: 20 November 2020

CaseChat Overview and Summary

Aboud was the appellant, bringing an application under Part 7 of the Crimes (Appeal and Review) Act 2001, challenging the sentences imposed by the Supreme Court of Victoria. The appellant was found guilty of using a carriage service to menace, harass or offend, and also of using a carriage service to procure or groom a child under 16 years of age for sexual purposes. The High Court was asked to consider whether there was a possible error in the original trial that could be described as a "Xiao error." The Xiao error is a term used to describe a trial judge's failure to warn a jury of the need to be satisfied beyond reasonable doubt of the defendant's guilt in relation to a specific charge or element of a charge.

The central issue before the court was whether the appellant's appeal rights had been exhausted and, if so, whether a referral should be made to the Court of Appeal under section 480A of the Criminal Procedure Act 2009. The court considered whether the appellant had previously been convicted and sentenced for the same conduct in relation to which he was now appealing, and if the trial judge had failed to warn the jury of the need to be satisfied beyond reasonable doubt of the appellant's guilt in relation to the procuring or grooming charge. The court also considered the appellant's argument that his trial lawyer had been ineffective in failing to raise the issue of the Xiao error during the trial or the appeal.

The court found that the appellant's appeal rights had been exhausted and that there was no basis for a referral to the Court of Appeal. The court noted that the appellant had been convicted and sentenced for the same conduct in relation to which he was now appealing. The court further found that there was no evidence of ineffective assistance of counsel in relation to the Xiao error, as the appellant's trial lawyer had not been aware of the potential for a Xiao error at the time of the trial or the appeal. The court concluded that there was no basis for a referral to the Court of Appeal, and the application was dismissed.

Orders