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Afiouny v The Queen

Afiouny v The Queen

Case [2017] NSWCCA 23 3 March 2017

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Afiouny v R [2017] NSWCCA 23
Hearing dates: 20 February 2017
Date of orders: 03 March 2017
Decision date: 03 March 2017
Before: Hoeben CJ at CL at [1]
Latham J at [52]
Price J at [53]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – causing loss to Commonwealth – illicit importation of tobacco without paying duty – at time of sentence offender already serving a sentence for bribery of a Commonwealth official – whether total non-parole period excessive – whether parole period inadequate to allow proper supervision and rehabilitation – whether adequate reasons for non-parole period – whether sentence manifestly excessive – the non-parole period was the minimum period to be served – leave to appeal granted but appeal dismissed.
Legislation Cited: Crimes Act 1914 (Cth) – ss 16A(1) and (2), 19AD(3)(b)
Criminal Code – ss 135.1(5), 141.1(1)
Cases Cited: Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176
Bugmy v R [1990] HCA 18; 169 CLR 525
Crimes Act 1914 (Cth) – ss 16A(1) and (2), 19AD(3)(b)
Deakin v R [1984] HCA 31; 58 ALJR 367
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lehn v R [2016] NSWCCA 255
Mill v The Queen [1988] HCA 70; 166 CLR 59
Power v The Queen [1974] HCA 26; 131 CLR 623
Category: Principal judgment
Parties: Bilal Afiouny – Applicant
Regina – Respondent Crown
Representation:
Counsel:
G James QC/TD Anderson – Applicant
KC Morgan – Respondent Crown
Solicitors:
One Group Legal – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2013/192662
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 May 2016

Before:

Arnott SC DCJ

File Number(s):

2013/192662

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was sentenced on 12 June 2015 after pleading guilty to one offence against s 135.1(5) of the Criminal Code for dishonestly causing loss to the Commonwealth in relation to the illicit importation of tobacco on three different occasions. The maximum sentence for this offence is imprisonment for 5 years.

The sentence imposed by Arnott SC DCJ (as subsequently adjusted on 17 May 2016) was imprisonment for 20 months, commencing 23 July 2017 and expiring on 22 March 2019, with a single non-parole period to commence 23 January 2014 and to expire on 22 March 2018.
The reason for the non-parole period being in that form was that the applicant was already serving a sentence imposed by the Court of Criminal Appeal (Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176) as follows:

In respect of count 1 a term of imprisonment for 4 years to commence 23 January 2014 and to expire 22 January 2018.

In respect of count 2 a term of imprisonment for…

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 Afiouny v The Queen

Details

AGLC: Afiouny v The Queen [2017] NSWCCA 23
Case: [2017] NSWCCA 23
Decision Date: 03 March 2017

CaseChat Overview and Summary

In the case of Afiouny v The Queen, the appellant, Mr Afiouny, appealed against his sentence for causing loss to the Commonwealth by illicitly importing tobacco without paying duty. This appeal came before the court as Mr Afiouny was already serving a sentence for the bribery of a Commonwealth official at the time of his sentencing. The primary issues the court had to decide were whether the total non-parole period of his sentence was excessive, whether the parole period was inadequate to allow for proper supervision and rehabilitation, whether there were adequate reasons for the length of the non-parole period, and whether the sentence was manifestly excessive.

The court examined the appellant's sentence in light of the need to balance the need for deterrence and denunciation against the circumstances of the offender and the offence. The court noted that the non-parole period was the minimum period to be served. It held that although the appellant's conduct was serious, the sentence was not manifestly excessive. The court also found that the reasons provided for the non-parole period were adequate and that the parole period was sufficient to allow for proper supervision and rehabilitation.

As a result, the appeal was dismissed, and the original sentence upheld. The court concluded that the sentence was proportionate to the gravity of the offence and the offender's circumstances, and that it was not excessive or inadequate in any way. The appeal was dismissed, and the original sentence was affirmed.

Orders