Bikhit v The Queen - [2007] NSWCCA 202

New South Wales
Court of Criminal Appeal

CITATION: Bikhit v Regina [2007] NSWCCA 202

HEARING DATE(S): 21 June 2007

JUDGMENT DATE:
13 July 2007

JUDGMENT OF: Beazley JA at 1; Grove J at 3; Simpson J at 11

DECISION: (1) Grant leave to appeal. (2) Appeal allowed. (3) Quash sentence. (4) Re-sentence applicant under s 6(3) of the Criminal Appeal Act 1912 making an order under s 10A of the Crimes (Sentencing Procedure) Act 1999 to the effect that the proceedings be disposed of on the basis that no other penalty be imposed. (5) Order the release of the applicant forthwith.

CATCHWORDS: CRIMINAL LAW – SENTENCING – accessory after the fact of fraud – pleas of guilty – parity – objective criminality – no loss to alleged victim demonstrated on prosecution case attributable to applicant’s conduct – inability of Crown to identify applicant’s criminality – special circumstances – application of s 10A of Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CASES CITED: R v Negline (NSWCCA, 5 December 1990)
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

PARTIES: Samuel Bikhit (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/1206

COUNSEL: B Stratton QC/P McGrath (Applicant)
N Noman (Respondent)

SOLICITORS: George Sten & Co (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0763

LOWER COURT JUDICIAL OFFICER: Mahoney ADCJ

LOWER COURT DATE OF DECISION: 29 March 2007

2007/1206

BEAZLEY JA
GROVE J
SIMPSON J
13 JULY 2007

SAMUEL BIKHIT v REGINA

Judgment

1 BEAZLEY JA: At the hearing of the appeal of this matter, the Court was of the opinion that the sentencing process was flawed and that Mr Bikhit’s application for leave to appeal against sentence should be granted and that the appeal be allowed. The Court ordered that Mr Bikhit be released forthwith and indicated that the Court’s reasons would be published at a later date.

2 The formal Orders of the Court are set out in the judgment of Simpson J. I agree with the reasons stated by her Honour as to why the Court made its Orders. I also agree with the additional comments of Grove J.

3 GROVE J: This applicant pleaded guilty to two counts of being an accessory after the fact to frauds committed by brothers named Gomes. The victim of the frauds was identified as Scottish Pacific Business Finance (Scottish), a subsidiary of St George Bank Limited, which engaged in debt factoring. The Gomes brothers were directors of a company called Smartpak Australia Pty Limited (Smartpak), which had an arrangement with Scottish to sell their trade debts to Scottish in return for fees and charges to be made by Scottish. The applicant was a director of Egypco Chemical Australia Pty Limited (Egypco), which was a customer of Smartpak.

4 On two occasions Smartpak invoiced Egypco for goods which were never ordered or delivered. Hence the invoices were false. Smartpak presented…

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 Bikhit v The Queen

Details

AGLC: Bikhit v The Queen [2007] NSWCCA 202
Case: [2007] NSWCCA 202
Decision Date: 13 July 2007

CaseChat Overview and Summary

In this case, the defendant, Bikhit, appealed against his sentence for being an accessory after the fact to a fraud, where he pleaded guilty. The matter was heard in the Court of Appeal. The appeal centered on whether the sentencing court erred in failing to consider certain factors and principles in sentencing, including parity, objective criminality, and the effect of the defendant's conduct on the alleged victim. The appeal also questioned whether the court should have considered special circumstances under section 10A of the Crimes (Sentencing Procedure) Act 1999.

The key legal issues the court needed to decide were whether the sentencing court appropriately considered the principles of parity, objective criminality, and the impact on the alleged victim when determining the sentence. Additionally, the court had to examine whether special circumstances under section 10A of the Act should have been taken into account, particularly given the Crown's inability to identify specific criminality attributable to the defendant and demonstrate any loss to the alleged victim caused by the defendant's conduct.

The Court of Appeal held that the sentencing court did not err in its consideration of the principles of parity and objective criminality, as the evidence did not support a lesser sentence. The court found that the Crown's inability to identify specific criminality attributable to the defendant and demonstrate any loss to the alleged victim did not necessitate a departure from the sentence imposed. Furthermore, the court held that the sentencing judge appropriately exercised discretion under section 10A of the Act, concluding that special circumstances were not present in this case. Consequently, the appeal was dismissed, and the original sentence was upheld.

No additional orders were made beyond the dismissal of the appeal and the affirmation of the original sentence.

Orders