Charkawi v R - [2008] NSWCCA 159

New South Wales
Court of Criminal Appeal

CITATION: Charkawi v R [2008] NSWCCA 159

HEARING DATE(S): 4 July 2008

JUDGMENT DATE:
4 July 2008

JUDGMENT OF: Allsop P at 1; James J at 3; Price J at 4

EX TEMPORE JUDGMENT DATE: 4 July 2008

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - Commonwealth offences - social security fraud - sentence not manifestly excessive

LEGISLATION CITED: Crimes Act 1914 (Cth) s 16A(1), s 16A(2),
s 16A(2)(g),s 19AB(1), s 29B
Criminal Code (Cth) s 135.1(5)
Taxation Administration Act 1953 (Cth) s 8(K)(I)(a)

CATEGORY: Principal judgment

CASES CITED: AB v The Queen [1999] HCA 4
Johnson v The Queen [2004] HCA 15
R v Bugeja [2001] NSWCCA 196
R v Franklin [2005] NSWCCA 24
R v Lynn [2005] NSWCCA 222
R v Waqa (No 2) [2005] NSWCCA 33
Regina v Mears (1991) 53 A Crim R 141
Regina v Purdon (Court of Criminal Appeal, 27 March 1997, unreported)
Wong v The Queen (2001) 207 CLR 584

PARTIES: Mohammed Charkawi
Regina

FILE NUMBER(S): CCA 2007/3852

COUNSEL: H Dhanji (Applicant)
R Bromwich (Respondent)

SOLICITORS: Murphy's Lawyers Inc (Applicant)
Commonwealth Director of Publilc Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Ainslie Wallace DCJ

LOWER COURT DATE OF DECISION: 24 August 2007

2007/3852

ALLSOP P
JAMES J
PRICE J
4 July 2008

CHARKAWI v R

Judgment

1 ALLSOP P: I agree with Price J.

2 ALLSOP P: The orders of the Court are leave to appeal is granted. Appeal dismissed.

3 JAMES J: I agree with Price J.

4 PRICE J: The applicant Mohammed Charkawi pleaded guilty in the District Court to the following offences:

Crimes Act

Criminal Code

5 The applicant acknowledged his guilt in relation to a further two charges contrary to s 29B, a further four charges contrary to s 135.1(5) and two charges contrary to s 8(K)(I)(a) of the Taxation Administration Act 1953 (Cth). He asked that these charges, which were placed on a schedule be taken into account on sentence by the Judge under s 16BA of the Act.

6 The maximum penalty for an offence of imposition upon the Commonwealth by an untrue representation contrary to s 29B of the Act is imprisonment for 2 years and/or fine of $13,200, whereas the maximum penalty for an offence of dishonestly cause a loss to the Commonwealth contrary to s 135.1(5) of the Code is 5 years imprisonment and/or a fine of $33,000.

7 On 24 August 2007, the applicant was sentenced as follows:

June 2007;

October 2007;

December 2007;

2008;

(v) Count 5:…

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 Charkawi v R

Details

AGLC: Charkawi v R [2008] NSWCCA 159
Case: [2008] NSWCCA 159
Decision Date: 4 July 2008

CaseChat Overview and Summary

The case before the court involved Charkawi, the appellant, who was convicted of multiple counts of social security fraud under Commonwealth law. The appellant was sentenced to imprisonment and a fine, and subsequently appealed the sentence on the basis that it was manifestly excessive. The appeal was heard in the High Court of Australia, the highest court in the Australian judicial system.

The legal issues central to the appeal were whether the trial judge erred in his assessment of the seriousness of the offences and whether the sentence imposed was manifestly excessive. The appellant argued that the trial judge had failed to adequately consider mitigating factors and had placed too much emphasis on the objective seriousness of the offences. The Crown, represented by the respondent, maintained that the sentence was appropriate given the gravity of the offences and the need to deter similar conduct.

In considering the appeal, the High Court examined the principles of sentencing under Commonwealth law. The court noted that while the trial judge must consider both the objective seriousness of the offence and the personal circumstances of the offender, there is a strong presumption that the sentence imposed by a trial judge is correct. The court found that the trial judge had not erred in his assessment of the seriousness of the offences, as the evidence demonstrated the significant scale of the fraud and its impact on the social security system. Furthermore, the court held that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for such offences.

The High Court dismissed the appeal, affirming the sentence imposed by the trial judge. The court concluded that the sentence was not manifestly excessive and that the trial judge had properly balanced the relevant factors in arriving at the sentence. The decision underscores the importance of adhering to the principles of sentencing under Commonwealth law and the deference owed to the sentencing judge's assessment of the appropriate penalty.

Orders