Damoun v The Queen - [2015] NSWCCA 109

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Damoun v R [2015] NSWCCA 109
Hearing dates: 20 November 2014
Decision date: 22 May 2015
Before: Simpson J at [1]; Price J at [54]; McCallum J at [55]
Decision:
(1)  Appeal against conviction dismissed;
(2)  Leave granted to appeal against sentence;
(3)  Appeal against sentence dismissed.
Catchwords:
APPEAL - conviction - conspiring dishonestly to cause loss to a Commonwealth entity, s 135.4(3) and s 11.5(1) Criminal Code - whether directions of trial judge resulted in miscarriage of justice - timing of entry into conspiracy - expansion of participants within the conspiracy - appeal rejected
APPEAL - sentence - whether trial judge failed to discount the sentence in light of applicant’s offer to facilitate the course of justice - no obligation to give weight to offer - no error found - appeal dismissed
Legislation Cited: Criminal Code (Cth), s 11.5(1), s 135.4(3)
Cases Cited: Davis v R [2015] NSWCCA 90
De Campos v R [2006] NSWCCA 51
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
R v Elomar [2010] NSWSC 10
Shepherd v The Queen [1990] HCA 56; 170 CLR 573
Category: Principal judgment
Parties: Dani Damoun (Appellant)
Regina (Respondent)
Representation:
Counsel:
D O’Neil (Appellant)
P Neil SC/S T Flood (Respondent)
Solicitors:
Moustafa Kheir (Appellant)
J Pheils - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/239729
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

14 November 2013

Before:

Lakatos DCJ

File Number(s):

2011/239729

Judgment

SIMPSON J: On 1 May 2013, following a lengthy trial in the District Court, the appellant was convicted of conspiring dishonestly to cause a loss to a Commonwealth entity. That is an offence against s 135.4(3) and s 11.5(1) of the Criminal Code (Cth) and carries a maximum penalty of imprisonment for 10 years. A co-accused, Ali Jomaa, was tried jointly with the appellant, and was also convicted.
On 14 November 2013 the appellant was sentenced to imprisonment for 3 years and 3 months, commencing on 10 October 2013, with a non-parole period of 2 years and 1 month. The commencement date took account of unrelated existing sentences for offences against state law. The earliest date on which the appellant will be eligible for release on parole is 9 November 2015.
The appellant now appeals against the conviction, and seeks leave to appeal against the sentence.
The sole ground on which he appeals against the conviction, and the sole ground on which he seeks leave to appeal against the sentence, are both narrow. In respect of the conviction, he complains that the trial judge left to the jury two possible bases of conviction that were not part of the Crown case. In respect of sentence, he complains that he was not given credit for an expressed willingness to facilitate the administration of justice by cooperating with the Crown so as to shorten the Crown case.

The Crown case

The indictment was in the following…

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 Damoun v The Queen

Details

AGLC: Damoun v The Queen [2015] NSWCCA 109
Case: [2015] NSWCCA 109
Decision Date: 22 May 2015

CaseChat Overview and Summary

The appeal involved Damoun, who was convicted of conspiring dishonestly to cause loss to a Commonwealth entity under sections 135.4(3) and 11.5(1) of the Criminal Code. The primary issue before the court was whether the directions given by the trial judge led to a miscarriage of justice. Specifically, the court had to determine the timing of Damoun's entry into the conspiracy and the expansion of participants within the conspiracy. The appeal also addressed whether the trial judge erred in sentencing by not giving sufficient weight to Damoun's offer to facilitate the course of justice.

The court found that the trial judge's directions did not result in a miscarriage of justice. It held that the evidence was sufficient to support Damoun's conviction, including the timing of his entry into the conspiracy and the identification of participants. The court held that the trial judge had correctly assessed the evidence and provided adequate directions to the jury. Regarding the sentencing, the court held that while Damoun's offer to facilitate the course of justice should be considered, the trial judge was not obligated to give it significant weight. The court found no error in the judge's sentencing approach.

Damoun's appeal was rejected, and the conviction and sentence were upheld. The court confirmed that the trial judge's directions and the sentencing process were appropriate, and no miscarriage of justice occurred. Therefore, the appeal was dismissed in its entirety.

Orders