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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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

6. 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 service to procure a person under the age of 16 for sex, and a count of using a carriage service to menace, harass or offend.

7. Later that year, on 29 July 2016, her Honour imposed upon the applicant a sentence of imprisonment for seven years, commencing on 24 June 2016 and expiring on 23 June 2021, with a non-parole period of five years three months, expiring on 23 September 2021.

8. A brief summary of the facts is as follows. Between the months of January 2011 and July 2011, the applicant adopted aliases on Facebook to initiate contact with various people, including children under the age of 16, and would attempt to elicit sexually explicit photographs from them. The applicant would also threaten to inform the parents of the victims if they refused to comply with his requests.

9. In the sentencing judgment, her Honour accepted the applicant’s early guilty pleas as an expression of remorse. Her Honour also spoke of the pleas of guilty as having shown a willingness to facilitate the course of justice.

10. The applicant thereafter applied to the Court of Criminal Appeal for leave to appeal against sentence. That was on the following three grounds: her Honour erred in her approach to the delay in prosecuting him; her Honour erred in her approach to setting the non-parole period; and her Honour failed to take into account the degree to which the applicant co-operated with law enforcement agencies in the investigation of the offences, in particular by supplying his passwords and account details for two false Facebook accounts, and giving his consent for police to access those accounts.

11. All three grounds of appeal were dismissed. Again understandably, none of them pertained to the present issue, namely the basis upon which her Honour made an assessment of any discount upon sentence arising from the pleas of guilty of the applicant. Nor did the Court of Criminal Appeal relevantly comment about the issue; yet again, the issue was understood differently at that time.

Submissions of the applicant

12. In comprehensive and helpful written submissions, counsel for the applicant submitted that both the sentencing judge and the Court of Criminal Appeal failed to consider the primary issue of a utilitarian discount for a plea of guilty entered in a Commonwealth matter. That was simply because the seminal decision in Xiao, and later decisions such as Diaz v R [2019] NSWCCA 216, post-date those judgments.

13. As a result, he submitted that the gateway test, pursuant to s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), of whether there appears to be a doubt or question as to any mitigating circumstances in the case is established, and the referral should be made. To do otherwise would be to permit readily seen error of law, disadvantageous to a serving prisoner, to be without remedy.

Xiao error conceded by Crown

14. In very brief written submissions on behalf of the CDPP in response, after having recited correctly the basis of the application, it was simply said “The Crown Respondent does not seek to make any submissions with respect to the application.” I interpret that statement as meaning that the application for referral is not opposed.

Consideration

15. In my opinion, having considered the sentencing judgment for myself, at the least the commission of “Xiao error” is very arguable. The question was not ventilated in the previous application to the Court of Criminal Appeal. Unless the application is granted, the appeal rights of the applicant to that Court have been exhausted.

16. I am satisfied that there appears to be a doubt or question about a mitigating circumstance in this matter. Referral to the Court of Criminal Appeal is the most efficient way to have the question authoritatively determined. Accordingly, I propose to grant the application for referral, which, as I have said, is not opposed by the prosecuting authority.

Order:

17. I make the following order:

1. 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).

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