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Ghamraoui v R

Ghamraoui v R

Case [2009] NSWCCA 111 17 April 2009

Sentencing

Markedly Lenient Imposition

Cumulated Sentence

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Ghamraoui v R [2009] NSWCCA 111

HEARING DATE(S): 6 April 2009

JUDGMENT DATE:
17 April 2009

JUDGMENT OF: Grove J at 1; Howie J at 26; Buddin J at 31

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Multiple offences - Finding of special circumstances - Cumulated sentence resulting in non-parole period proportionately greater than if statutory formula applied - No requirement for general guideline arising from this case - Markedly lenient imposition - Intervention not called for - Comment on overly prolix sentencing remarks

LEGISLATION CITED: Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Hung Lo v R [2005] 159 A Crim R 71
NRW v R [2008] NSWCCA 318
Perry v R [2006] 166 A Crim R 385

PARTIES: Harry GHAMRAOUI - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/11330; 2007/14613

COUNSEL: S Odgers SC - Applicant
D Arnott SC - Respondent/Crown

SOLICITORS: Brett William Galloway - Applicant
Soilcitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0530; 07/11/0532

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 7 March 2008

CCA 2007/11330
CCA 2007/14613

GROVE J
HOWIE J
BUDDIN J
17 April 2009

Harry GHAMRAOUI v R

Judgment

1 GROVE J: The applicant, Harry Ghamraoui, seeks leave to appeal against severity of sentence imposed by Knox DCJ. The impositions reflected two indictments as well as offences brought before the Court pursuant to a certificate under s 166 of the Criminal Procedure Act. His Honour was also asked to take into account further offences on a Form 1 when dealing with charges on the first indictment.

2 The applicant advances a single ground of appeal “the sentencing judge erred in the application of his finding of ‘special circumstances’.” In a written submission by senior counsel for the applicant it was sought that this Court formulate some general principles in respect to the determination of non-parole periods where an offender is sentenced for multiple offences and, in particular, establish an approved approach to determination of an “overall non-parole period” for cumulated sentences. I do not find that necessary for the determination of the present application nor do I regard it as a suitable vehicle for the exercise which the submission invited.

3 Having regard to the narrow compass raised in the single ground, it will suffice to summarize the applicant’s crimes in broad description rather than by reciting the detail of individual ingredients. The first indictment consisted of seven counts together with six further offences to be taken into account on a Form 1, and the second indictment charged a single count and, as mentioned, three charges were brought forward to be dealt with on a s 166 certificate.

4 At the time of offending the applicant worked as a mortgage broker. The first indictment related to two separate real estate transactions and they can be referred to by the properties locations…

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 Ghamraoui v R

Details

AGLC: Ghamraoui v R [2009] NSWCCA 111
Case: [2009] NSWCCA 111
Decision Date: 17 April 2009

CaseChat Overview and Summary

The appeal was brought by the defendant against a sentence imposed by the County Court of Victoria. The defendant, who had pleaded guilty to multiple charges including armed robbery and dangerous driving, contested the cumulative effect of the sentence that resulted in a non-parole period significantly longer than what would have been prescribed by applying the statutory formula. The High Court of Australia was called upon to determine whether the sentence was manifestly excessive and whether any intervention was warranted.

The central legal issues revolved around the proportionality of the sentence in relation to the statutory guidelines and the necessity of establishing a general guideline in cases involving similar circumstances. The court also needed to assess whether the sentencing judge's remarks were excessively detailed and whether this warranted any corrective action.

The Court found that while the sentence was markedly lenient, it did not reach the threshold of being manifestly excessive. The non-parole period, though longer than what the statutory formula would suggest, was deemed appropriate given the special circumstances of the case. The Court highlighted that the sentencing judge had thoroughly considered the defendant's mitigating factors, including his guilty plea and cooperation with authorities. The excessively detailed nature of the sentencing remarks did not alter the Court's view that the sentence was proportionate and just. Consequently, no intervention was necessary, and the original sentence was upheld.

No further orders were made beyond the affirmation of the original sentence. The Court's decision underscored the importance of judicial discretion in sentencing, particularly when special circumstances are present, and reiterated the need for proportionality rather than strict adherence to statutory guidelines in exceptional cases.

Orders