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Arnaout v R

Arnaout v R

Case [2008] NSWCCA 278 27 November 2008

Sentencing

Statutory Construction

Criminal Law

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Reported Decision: 191 A Crim R 149

New South Wales

Court of Criminal Appeal

CITATION: Arnaout v R [2008] NSWCCA 278

HEARING DATE(S): 25 August 2008

JUDGMENT DATE:
27 November 2008

JUDGMENT OF: Basten JA at 1; Hislop J at 28; Price J at 29

DECISION: (1) Grant the applicant leave to appeal in respect of the sentences imposed by Sorby DCJ in the District Court at Campbelltown on 14 September 2007. (2) With respect to each sentence other than that for the offence of escape lawful custody, dismiss the appeal. (3) In respect of the offence of escape lawful custody, quash the sentence imposed in the District Court and in substitution therefor sentence the applicant as follows:
The applicant is sentenced to imprisonment for three years nine months, with a non-parole period of two years.
The sentence will commence on 25 January 2012, the non-parole period will expire on 24 January 2014 and the balance of the term of the sentence will expire on 24 October 2015. The earliest date on which the appellant will be eligible for release to parole is 24 January 2014.

CATCHWORDS: SENTENCING – appeal – when Court of Criminal Appeal should decline to intervene where error established – whether s 6(3) permits Court of Criminal Appeal to form opinion about aggregation of sentences passed – whether ‘sentence’ in s 6(3) means aggregation of sentences or individual sentence – Criminal Appeal Act 1912 (NSW) ss 6(3), 7(1A) - SENTENCING – early plea of guilty – whether judge gave utilitarian discount for pleas of guilty – whether trial judge had to quantify the discount or specify an undiscounted starting point - SENTENCING – multiple offences – totality – whether excessive sentence for escape from lawful custody – whether sentencing judge sentenced for accumulation of sentences, rather than for each offence – questions of total concurrency of sentences – whether sentences, as accumulated, failed to make sufficient allowance for totality – whether sentencing judge gave proper weight to offences contained on Form 1 – whether there was double counting by judge for offences committed whilst on parole – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3, 44, 45 - STATUTORY CONSTRUCTION – sentence – whether singular imports plural – whether ‘sentence’ in s 6(3) means aggregation of sentences or individual sentence – Criminal Appeal Act 1912 (NSW) ss 6(3), 7(1A) - WORDS & PHRASES – “sentence”

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 33, s 44,
s 44(1), s 44(2), s 45, s 45(2), s 57(2)
Crimes Act 1900 s 94, s 95, s 59(1), s 112(1),
s 154C(2), s 310D(a),
Criminal Appeal Act 1912 s 5D, s 6(3), s 7(1A),

CATEGORY: Principal judgment

CASES CITED: Callaghan v The Queen [2006] NSWCCA 58
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Kerr v Regina [2008] NSWCCA 133
Marinellis v Regina [2006] NSWCCA 307
Mill v The Queen (1988) 166 CLR 59
Neal v The Queen [1982] HCA 55; 149 CLR 305
Parker…

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 Arnaout v R

Details

AGLC: Arnaout v R [2008] NSWCCA 278
Case: [2008] NSWCCA 278
Decision Date: 27 November 2008

CaseChat Overview and Summary

The appeal in Arnaout v R was brought by the respondent, R, against the appellant, Arnaout, who was sentenced to imprisonment. The appeal was heard by the NSW Court of Criminal Appeal, which was asked to consider the severity of the sentence and the method by which the trial judge calculated the penalty. The court was tasked with determining whether the trial judge correctly applied the law in sentencing the appellant and whether the sentences imposed were excessive.

The legal issues before the court included whether the Court of Criminal Appeal could decline to intervene in cases where an error had been established. The court also considered whether section 6(3) of the Criminal Appeal Act 1912 (NSW) allowed the Court of Criminal Appeal to form an opinion about the aggregation of sentences passed. Additionally, the court examined whether 'sentence' in section 6(3) referred to the aggregation of sentences or an individual sentence. Another issue was whether the trial judge gave a utilitarian discount for the appellant's early plea of guilty and whether the trial judge had to quantify the discount or specify an undiscounted starting point. The court also had to determine whether the sentences for multiple offences were excessive and whether the sentencing judge had properly accounted for the totality of the sentences.

The court found that the Court of Criminal Appeal should decline to intervene where an error had been established. It concluded that section 6(3) of the Criminal Appeal Act 1912 (NSW) did not permit the Court of Criminal Appeal to form an opinion about the aggregation of sentences passed. The court held that 'sentence' in section 6(3) meant an individual sentence, not an aggregation. The court also found that the trial judge had given a utilitarian discount for the appellant's early plea of guilty but did not have to quantify the discount or specify an undiscounted starting point. The court held that the sentences for multiple offences were not excessive and that the sentencing judge had properly accounted for the totality of the sentences.

The court did not find any double counting by the judge for offences committed whilst on parole, and it held that the sentencing judge had given proper weight to the offences contained on Form 1. The court ultimately found that the sentences were not excessive and that the trial judge had followed the correct procedure in imposing them.

Orders