Bou-Antoun v The Queen - [2013] NSWCCA 305

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bou-Antoun v R [2013] NSWCCA 305
Hearing dates: 23 October 2013
Decision date: 05 December 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Latham J at [3]
Decision:
Application for extension of time within which to seek leave to appeal is refused.

Catchwords: CRIMINAL LAW - application for extension of time to appeal sentence - guilty plea - aggravated sexual assault (in company) and solicit to murder - unexplained and gross delay - provisional grant of legal aid on basis of Muldrock error ground - whether trial judge erred in finding aggravating factors - whether trial judge erred by failing to give effect to finding of special circumstances - whether trial judge fell into Muldrock error - whether sentence for solicit to murder offence and aggregate sentence manifestly excessive - trial judge erred in determining that actual or threatened violence was aggravating factor of solicit to murder offence - feature of offence that is inherent to offence cannot be taken into account as aggravating factor - no Muldrock error - no failure to give effect to finding of special circumstances - sentence not plainly unjust - whether error was material such as to warrant lesser sentence in law - no lesser sentence warranted in law - application refused
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Abdul v R [2013] NSWCCA 247
Application by Chaouki Bou Antoun pursuant to s 78(1) Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1540
Bou-Antoun v R [2008] NSWCCA 1
Louizos v R [2009] NSWCCA 71
Muldrock v R [2011] HCA 39 ; 244 CLR 120
Category: Principal judgment
Parties: Kevin Bou-Antoun - (Applicant)
Regina - (Crown Respondent)
Representation: Counsel:
C Bruce SC - (Applicant)
M Cinque - (Crown Respondent)
Solicitors:
Andrew Harris & Associates - (Applicant)
Solicitor for Public Prosecutions - (Crown Respondent)

File Number(s): 2004/12922 2005/15133
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2006-05-12 00:00:00

Before:

Sorby DCJ

File Number(s):

2004/12922
2005/15133

Judgment

HOEBEN CJ at CL : I agree with Latham J and the order she proposes.

JOHNSON J : I agree with Latham J.

LATHAM J : The applicant, Kevin Bou-Antoun, applies for an extension of time within which to appeal against the asserted severity of a sentence imposed upon him by Sorby DCJ on 12 May 2006 following pleas of guilty to aggravated sexual assault (in company) and solicit to murder. The former carries a maximum penalty of 20 years' imprisonment while the latter carries a maximum penalty of 25 years' imprisonment. Each offence carries a standard non-parole period of 10 years.

On the aggravated sexual assault offence a sentence of 5 years fixed term was imposed, commencing 2 May 2003. Given that the offence carries a standard non-parole period, the imposition of a fixed term was not open to his Honour. However, the applicant does not take issue with this aspect of the proceedings.

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 The Queen

Details

AGLC: Bou-Antoun v The Queen [2013] NSWCCA 305
Case: [2013] NSWCCA 305
Decision Date: 05 December 2013

CaseChat Overview and Summary

In the matter of Bou-Antoun v The Queen, the defendant appealed against his sentence, seeking an extension of time to appeal. The defendant had pleaded guilty to charges of aggravated sexual assault in company and solicitation to murder. The Court of Appeal was tasked with determining whether the trial judge erred in finding certain factors as aggravating, whether the trial judge failed to give effect to the finding of special circumstances, and whether the trial judge fell into the error identified in Muldrock. Additionally, the court considered whether the sentence for the solicitation to murder offence and the aggregate sentence were manifestly excessive.

The legal issues before the court were multifaceted, focusing on the proper application of aggravating and special circumstances in sentencing, and the implications of the Muldrock error on the defendant's appeal. The court had to determine whether the trial judge correctly identified and applied the aggravating factors, whether there was a failure to give effect to the special circumstances, and if the trial judge's determination regarding the solicitation to murder offence constituted an error warranting a lesser sentence. The court also assessed the overall fairness and proportionality of the sentences imposed.

In its decision, the Court of Appeal held that the trial judge did not err in finding aggravating factors, nor did the trial judge fail to give effect to the finding of special circumstances. The court clarified that a feature of the offence inherent to the solicitation to murder offence could not be considered an aggravating factor. The court found no Muldrock error and concluded that the sentence was not plainly unjust. The court further determined that the trial judge's error, if any, was not material enough to warrant a lesser sentence in law. Consequently, the application for an extension of time to appeal was refused.

The court's final orders were that the application for an extension of time to appeal the sentence was refused. The Court of Appeal upheld the original sentencing, finding no grounds for a reduction in the sentences imposed. The defendant's appeal against the sentence was dismissed without further consideration of the time extension application.

Orders