Ayoub v The King - [2024] NSWCCA 168

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ayoub v R [2024] NSWCCA 168
Hearing dates: 21 August 2024
Date of orders: 6 September 2024
Decision date: 06 September 2024
Before: Harrison CJ at CL at [1]
N Adams J at [2]
Dhanji J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – totality – whether sentencing judge erred in the application of the principles of totality – sentencing for multiple domestic violence offences – antecedent and current offences – determination involves exercise of discretion – non-parole periods – departure from statutory norm – whether reflective of error – applicant’s argument flawed – no foundation to complaint – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 59(1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(5)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58
Director of Public Prosecution (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Harris v R [2023] NSWCCA 44
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115

Category: Principal judgment
Parties: Nathan Ayoub (Applicant)
Rex (Respondent)
Representation:
Counsel:
R Rodger (Applicant)
J Styles (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00319854
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 February 2024

Before:

Abadee DCJ

File Number(s):

2022/00319854

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Nathan Ayoub, sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him on 2 February 2024 in the District Court of New South Wales. The applicant was sentenced with respect to three offences of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) committed against his then partner. One offence of stalk and intimidate contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was taken into account on a Form 1 document.

The applicant was afforded a 25 per cent discount with respect to each offence for his pleas of guilty which were entered in the Local Court. He was sentenced to an aggregate sentence of 4 years and 9 months imprisonment with a non-parole period of 2 years and 10 months, commencing on 1 October 2023.

The applicant contended that the sentencing judge ought to have considered totality between the sentence he…

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 Ayoub v The King

Details

AGLC: Ayoub v The King [2024] NSWCCA 168
Case: [2024] NSWCCA 168
Decision Date: 06 September 2024

CaseChat Overview and Summary

The case of Ayoub v The King involved an appeal against the sentence imposed by the sentencing judge. The applicant, Ayoub, was convicted of multiple domestic violence offences and was sentenced to a term of imprisonment. The appeal centred on the principles of totality in sentencing, specifically whether the sentencing judge had erred in applying these principles to determine the appropriate sentence for the applicant's multiple offences. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the sentencing judge had erred in applying the principles of totality, and whether the resulting non-parole periods imposed on the applicant were reflective of any such error. The applicant argued that the sentencing judge had not correctly considered the totality of the offences, and that the resulting non-parole periods departed from the statutory norm without adequate justification. The applicant contended that the sentencing judge had failed to adequately weigh the totality of the offences and the need for general deterrence.

The court found that the applicant's argument was flawed and lacked foundation. The court held that the sentencing judge had exercised their discretion in determining the appropriate sentence, and that the resulting non-parole periods were not reflective of any error in applying the principles of totality. The court found that the sentencing judge had adequately considered the totality of the offences, and that the resulting sentence was appropriate in the circumstances. The court dismissed the appeal and granted leave to appeal, affirming the original sentence imposed by the sentencing judge.

Orders