Ayoubi v R - [2006] NSWCCA 364

CITATION: AYOUBI v REGINA [2006] NSWCCA 364

HEARING DATE(S): 5 September 2006; 17 November 2006

JUDGMENT DATE:
24 November 2006

JUDGMENT OF: Giles JA at 1; Sully J at 2; Latham J at 3

DECISION: Leave to appeal against sentence granted; Appeal dismissed.

CATCHWORDS: Sentence Appeal - Break, Enter and Steal offences - sentences imposed on the basis that offences committed while the Applicant was suffering from a mental illness - whether Court should allow fresh evidence - no miscarriage of justice justifying reception of fresh evidence

CASES CITED: Benitez v R (2006) 160 A Crim R 166 ; [2006] NSWCCA 21
R v Matthews [2004] NSWCCA 112
R v Fordham (1997) 98 A Crim R 359

PARTIES: Mohamad Ayoubi - Applicant
Regina - Respondent

FILE NUMBER(S): CCA 2006/1741

COUNSEL: DG Dalton SC - Applicant
P Barrett - Respondent

SOLICITORS: J Hajje - Applicant
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3169

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

LOWER COURT DATE OF DECISION: 25 November 2005

2006/1741

GILES JA
SULLY J
LATHAM J
24 NOVEMBER 2006

MOHAMAD AYOUBI v REGINA

Judgment

1 GILES JA : I agree with Latham J.

2 SULLY J : I agree with Latham J.

3 LATHAM J : The applicant Mohamad Ayoubi seeks leave to appeal from sentences imposed by Sides QC DCJ at Campbelltown on 25 November 2005, following pleas of guilty to 12 counts of Break Enter and Steal, one count of Break Enter with Intent to Steal and one count of Stealing and Attempting to Break Out. The applicant requested that a further 14 offences be taken into account on a Form One when his Honour came to sentence the applicant on the last count on the indictment (Count 14).

4 The structure of the sentences imposed is as follows :-

5 The aggregate sentence was therefore a head sentence of five years with a non parole period of three years, expiring on 24 January 2007.

A Significant Course of Offending

6 There is no dispute relating to the circumstances surrounding the commission of the offences. His Honour summarised the…

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 Ayoubi v R

Details

AGLC: Ayoubi v R [2006] NSWCCA 364
Case: [2006] NSWCCA 364
Decision Date: 24 November 2006

CaseChat Overview and Summary

In the case of Ayoubi v R, the respondent, a convicted individual, appealed against his sentences for break and enter and steal offences. The appeal centred on the sentences imposed, which were based on the consideration that the respondent had committed the offences while suffering from a mental illness. The High Court of Australia was tasked with determining whether the trial court should have allowed fresh evidence to be presented in relation to the respondent's mental state at the time of the offences. The crux of the legal issue was whether the reception of fresh evidence would result in a miscarriage of justice.

The High Court examined the principles governing the allowance of fresh evidence in sentencing appeals. It considered the circumstances under which such evidence might be received and whether, in this case, a miscarriage of justice had occurred. The Court held that the trial judge had exercised appropriate discretion in declining to allow fresh evidence, as there was no demonstrated miscarriage of justice that would warrant the reception of such evidence. The trial judge had already considered the respondent's mental health issues and had taken them into account in determining the sentences imposed. The Court concluded that the trial judge's decision was within the bounds of reasonableness, and there was no need to allow fresh evidence.

The High Court's decision was to uphold the original sentences imposed by the trial court. The Court found that the trial judge had appropriately exercised their discretion in declining to receive fresh evidence, as there was no miscarriage of justice that would justify the reception of such evidence. The trial judge had already considered the respondent's mental health issues and had taken them into account in determining the sentences imposed. Consequently, the appeal was dismissed, and the original sentences remained in place.

Orders