Bou-Antoun v R - [2008] NSWCCA 1

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Bou-Antoun v Regina [2008] NSWCCA 1

FILE NUMBER(S):
2006/5045

HEARING DATE(S):
10 December 2007

JUDGMENT DATE:
1 February 2008

PARTIES:
Chaoki Bou-Antoun (Applicant)
Regina (Respondent)

JUDGMENT OF:
Grove J Simpson J Barr J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/1493

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
24 August 2006

COUNSEL:
J. Stratton SC (Applicant)
D. Woodburne (Respondent/Crown)

SOLICITORS:
Morgan, Adams & Co (Applicant)
S. Kavanagh (Solicitor for Public Prosecutions)Respondent

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Solicitation to murder
Intended victim a Crown witness in a trial of appellant's son
Payment of "deposit" by appellant to undercover policeman pretending to be willing to kill victim
No error demonstrated in remarks of sentencing judge
Intention not only to kill but cause the victim significant ante-mortem suffering
Stern sentence appropriate
Relevant guidance from prescription of standard non-parole period

LEGISLATION CITED:
s21A(1) Crimes (Sentencing Procedure) Act 1999
s6(3) Criminal Appeal Act 1912

CASES CITED:
R v Ransford (1874) LTNS 488
R v Taouk [1993] 65 A Crim R 387
R v Thomson & Houlton [2000] 49 NSWLR 383
R v Way [2004] 60 NSWLR 168

TEXTS CITED:

DECISION:
Leave to appeal against sentence granted.
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/5045
GROVE J
SIMPSON J
BARR J
1 February 2008

Chaoki BOU-ANTOUN v REGINA

Judgment

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Sorby DCJ at Sydney District Court. The applicant pleaded guilty to a single count of soliciting to murder, a crime for which the legislature has prescribed a maximum sentence of twenty five years imprisonment and a standard non-parole period of ten years. The applicant is a plumber by occupation having been born in 1955. He has been married twice, the first marriage ending in divorce. From his first marriage there are four children, one of whom is a son Khater, who is also known as Kevin. It is convenient to refer to him as the latter. The applicant has an infant daughter born in 2004 from his second marriage. He has prior convictions for obscene exposure and driving with a prescribed mid-range concentration of alcohol in his blood but these convictions can be ignored as of no weight in the present matter.
On 2 May 2003 the applicant’s son Kevin was arrested and charged with offences including aggravated sexual assault upon a then sixteen year old girl, whom I will refer to as R. Kevin was detained in custody on remand at the MRRC Silverwater. He was sharing a cell and spoke to his cellmate about having R killed so that she could not give evidence against him. He asked whether the cellmate knew anyone who might perform the killing. The cellmate said that he would make enquiries, however he in fact reported the approach to authorities. Thereafter, in cooperation with police he posed as a go-between with an undercover police officer (UCO)…

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 Bou-Antoun v R

Details

AGLC: Bou-Antoun v R [2008] NSWCCA 1
Case: [2008] NSWCCA 1
Decision Date: 1 February 2008

CaseChat Overview and Summary

The case before the court involved an appeal against conviction and sentence brought by the appellant, Bou-Antoun, against the Crown. The dispute centred on the appellant's solicitation to murder a Crown witness who was due to testify against his son in a criminal trial. The appellant had made payments to an undercover policeman, who was posing as a hitman, for the purpose of carrying out the murder. The court was tasked with determining whether the lower court's findings of fact were correct and whether the sentence imposed was appropriate.

The legal issues that arose in the case included whether there was sufficient evidence to support the appellant's conviction for solicitation to murder and whether the remarks made by the sentencing judge were erroneous. Additionally, the court had to consider whether the sentence imposed was appropriate in light of the appellant's intention to not only kill the victim but also cause them significant ante-mortem suffering. The court also needed to determine the relevance of the standard non-parole period for the crime of solicitation to murder.

The court found that the evidence presented was sufficient to support the appellant's conviction for solicitation to murder. The court also held that the sentencing judge's remarks were not erroneous and that the sentence imposed was appropriate given the appellant's intention to cause significant ante-mortem suffering to the intended victim. The court further noted that the relevant guidance for sentencing in this case could be found in the standard non-parole period for the crime of solicitation to murder. The appeal against conviction and sentence was dismissed.

Orders