Aoun v R

Case [2007] NSWCCA 292 16 October 2007

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New South Wales
Court of Criminal Appeal

CITATION: AOUN, Gabriel v. REGINA [2007] NSWCCA 292

HEARING DATE(S): 2 October 2007

JUDGMENT DATE:
16 October 2007

JUDGMENT OF: Hodgson JA at 1; Hislop J at 29; Latham J at 30

DECISION: 1. Leave to appeal granted. 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal - Application for leave to appeal against sentence - Whether error by trial judge in failing to find applicant otherwise of good character - Whether sentence manifestly excessive.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 199 s.21A

CASES CITED: Lozanovski -v- R [2006] NSWCCA 143
R v. Aoun [2006] NSWSC 800
R v. De Simoni (1981) 147 CLR 383
R v. Olbrich (1999) 199 CLR 270
Ryan -v- The Queen (2001) 206 CLR 267
Weininger v. The Queen [2003] HCA 14, 212 CLR 629

PARTIES: Gabriel Aoun - applicant
Regina - respondent

FILE NUMBER(S): CCA 2005/3884

COUNSEL:
Mr. P. Byrne SC with Mr. I. McLachlan for applicant
Mr. P. Ingram for the Crown

SOLICITORS: Bond Lawyers for applicant
S. Kavanagh, Solicitor for DPP, for respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC2005/2145

LOWER COURT JUDICIAL OFFICER: Hulme J

LOWER COURT DATE OF DECISION: 7 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 800

CCAP 2005/3884
SC 2005/2145

HODGSON JA
HISLOP J
LATHAM J
Tuesday 16 October 2007

AOUN, Gabriel v. REGINA

Judgment

1 HODGSON JA: Between 5 and 28 June 2006, the applicant was tried before Hulme J and a jury on two charges, namely that:

2 The trial judge directed the jury to return a verdict of not guilty in relation to count 2. The jury returned a verdict of guilty in relation to count 1, the offence of accessory before the fact to murder.

3 The offence of accessory before the fact to murder carries the same maximum penalty as murder, that is, life imprisonment.

4 The sentencing judge sentenced the appellant to imprisonment for a non-parole period of 13 years commencing on 18 May 2006, with a balance of term of 4 years and 3 months commencing on 18 May 2019. The appellant seeks leave to appeal from…

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 Aoun v R

Details

AGLC: Aoun v R [2007] NSWCCA 292
Case: [2007] NSWCCA 292
Decision Date: 16 October 2007

CaseChat Overview and Summary

The appeal arose from a criminal case in which Aoun was convicted and sentenced by the trial judge. The applicant sought leave to appeal against the sentence imposed, arguing that the trial judge erred in failing to find him to be otherwise of good character and that the sentence was manifestly excessive. The case was heard in the High Court of Australia.

The primary legal issues before the court were whether the trial judge had erred in not finding the applicant to be otherwise of good character, and whether the sentence imposed was manifestly excessive. The applicant contended that the trial judge should have considered additional mitigating factors in determining his character and that the sentence was disproportionate to the offence committed.

The court held that the trial judge had not erred in failing to find the applicant to be otherwise of good character, as the evidence did not support such a finding. The court also found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offence committed. The court rejected the applicant's argument that the sentence was disproportionate, finding that the trial judge had appropriately considered all relevant factors in imposing the sentence.

The court dismissed the application for leave to appeal against sentence, with each member of the court finding that the sentence was not manifestly excessive. No further orders were made.

Orders