Medium Neutral Citation: Aboud v R [2021] NSWCCA 77
Hearing dates: 17 March 2021
Date of orders: 28 April 2021
Decision date: 28 April 2021
Before: Simpson AJA at [1]
Bellew J at [8]
Wilson J at [113]
Decision:
1) Appeal dismissed.

Catchwords:
CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Where appellant pleaded guilty to one count of using a carriage service to menace, harass or offend, four counts of using a carriage service to groom a person under the age of 16 years for sexual activity and one count of using a carriage service to procure a person under the age of 16 years for sexual activity – Where sentencing judge erred by failing to take into account the utilitarian value of the appellant's plea of guilty – Error established giving rise to the necessity to exercise the sentencing discretion afresh – Where plea was entered at the first available opportunity – Where the appellant had co-operated with authorities – Whether specific discount should be applied to reflect that co-operation – Where appellant demonstrated genuine remorse – Where appellant had no prior criminal history – Where offending was planned and involved the creation of false identities - Serious offending committed over a sustained period of time – Where offending involved predatory and manipulative behaviour towards teenage girls – No lesser sentence warranted in the fresh exercise of the sentencing discretion - Leave to appeal granted – Appeal dismissed
CRIMINAL LAW – Sentence – Relevance of delay when sentencing a Federal Offender

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Legislation Amendment Act (No. 2) 1989 (Cth)
Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code 1995 (Cth)

Cases Cited:
Aboud v R [2017] NSWCCA 140
Aboud v R [2020] NSWSC 1648
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1
Davis v R [2015] NSWCCA 90
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Holyoakv R (1995) 82 A Crim R 50
Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
Pratten v R (2017) 94 NSWLR 194; [2017] NSWCCA 42
R v Asplund [2010] NSWCCA 316; (2010) 216 A Crim R 48
R v El Karhani (1990) 21 NSWLR 371
R v Gay [2002] NSWCCA 6
R v Paull (1990) 20 NSWLR 427
R v Poynder [2007] NSWCCA…

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 [2021] NSWCCA 77
Case: [2021] NSWCCA 77
Decision Date: 28 April 2021

CaseChat Overview and Summary

In the case of Aboud v The Queen, the appellant was convicted of various offences involving the use of a carriage service to commit serious criminal activities, including menacing, grooming, and procuring a person under the age of 16 years for sexual activity. The appellant pleaded guilty to the charges and the matter proceeded to sentencing. The appellant sought leave to appeal against the sentence, arguing that the sentencing judge had erred by not taking into account the utilitarian value of the appellant's plea of guilty, as well as other mitigating factors. The court was required to decide whether the error made by the sentencing judge warranted the granting of leave to appeal and whether the sentence imposed was appropriate in light of the appellant's guilty plea and other mitigating factors.

The court found that the sentencing judge had indeed erred by not taking into account the utilitarian value of the appellant's plea of guilty. The appellant had entered the plea at the first available opportunity and had cooperated with the authorities, which were factors that should have been considered in the sentencing process. The court also considered whether a specific discount should be applied to reflect the appellant's cooperation and whether the appellant had demonstrated genuine remorse. However, the court found that the appellant's offending was serious, involving predatory and manipulative behaviour towards teenage girls, and that the sentence imposed was appropriate in light of the circumstances. The court held that no lesser sentence was warranted in the fresh exercise of the sentencing discretion.

The court granted leave to appeal against the sentence but dismissed the appeal, finding that the sentence imposed was appropriate in the circumstances. The court noted that the appellant had no prior criminal history and had demonstrated genuine remorse, but that these factors were outweighed by the seriousness of the offending and the need to protect the community. The court also noted that the offending was planned and involved the creation of false identities, and that the appellant's offending had been committed over a sustained period of time. The court found that the sentence imposed was sufficient to reflect the seriousness of the offending and to achieve the objectives of sentencing, including deterrence, rehabilitation, and denunciation. The final orders of the court were that leave to appeal was granted and the appeal was dismissed.

Orders