Akoum v The King - [2023] WASCA 102

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   AKOUM -v- THE KING [2023] WASCA 102
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   21 MARCH 2023
DELIVERED          :   29 MARCH 2023
PUBLISHED           :   5 JULY 2023
FILE NO/S:   CACR 125 of 2022
BETWEEN:   BAHJAT AKOUM
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
File Number            :   IND 2322 of 2020

Catchwords:
Criminal law - Urgent appeal against sentence - Appellant convicted on guilty plea to one count of dealing with money reasonably suspected to be proceeds of crime - Appellant sentenced to 12 months' imprisonment - Where related offender engaged in same criminal enterprise charged with different offences - Whether sentencing judge misapplied parity principle by taking into account irrelevant consideration - Whether sentencing judge infringed parity principle
Legislation:
Crimes Act 1914 (Cth), s 16A, s 16AC
Criminal Code (Cth), s 11.2(1), s 400.9
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:

Appellant : G Barns SC & S Nigam

Respondent : A Willinge
Solicitors:

Appellant : Nigams Legal Pty Ltd

Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in decision(s):
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Jimmy v The Queen (2010) 77 NSWLR 540
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Anthony [2020] QCA 79
R v Smith [2022] QCA 89
Tomov v The Queen [2011] WASCA 189

BUSS P & MAZZA JA:
1This appeal against sentence was heard, on an urgent basis, on 21 March 2023.
2We formed the majority which, on 29 March 2023, allowed the appellant's appeal and resentenced him. The court ordered that:
1.Leave to appeal on grounds 1 and 2 granted.
2.Appeal allowed.
3.The sentence imposed by the primary judge is set aside.
4.The appellant is resentenced to 8 months' imprisonment.
5.The appellant is to be released upon serving 4 months of the new sentence of 8 months' imprisonment upon the appellant giving security, without a surety, by recognisance in the sum of $5,000 that he will be of good behaviour for a period of 4 months.
6.The new sentence of 8 months' imprisonment is to be taken to have taken effect on 29 November 2022.

3The court said that its reasons would be published later. These are our reasons.
4We have had the distinct advantage of reading in draft the reasons of Hall JA who would have dismissed the appeal. He has set out all the necessary background, including the facts of the offending engaged in by the appellant and his co‑offender, Mr Dandachi, the details of the sentences that were imposed upon them, the grounds of appeal and the submissions of the parties in support of those grounds. We…

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 Akoum v The King

Details

AGLC: Akoum v The King [2023] WASCA 102
Case: [2023] WASCA 102
Decision Date

CaseChat Overview and Summary

This appeal against sentence was heard by the Supreme Court of Western Australia. The appellant was convicted on his plea of guilty of one count of dealing with money or other property, it being reasonable to suspect that such money or other property was proceeds of crime, and, at the time of dealing, the value of the money or property was $100,000 or more, contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth). He was sentenced to 12 months' immediate imprisonment to be released on a recognisance to be of good behaviour in the sum of $5,000 after serving 6 months of the term. The appeal was based on the parity principle, alleging that the sentence imposed on the appellant breached the principle of parity because, when compared to the sentence imposed on a related offender, it gave rise to a justifiable sense of grievance on the part of the appellant. The court found that the appellant's offending, serious as it undoubtedly was, was not of the same magnitude of seriousness as that of the related offender, and the insufficient disparity between the sentences imposed on the appellant and the related offender gave rise to a legitimate or justifiable sense of grievance on the part of the appellant. The appeal was allowed and the appellant was resentenced to 8 months' imprisonment.

Orders