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Ghanem v Regina

Ghanem v Regina

Case [2008] NSWCCA 4 8 February 2008

Aggravated sexual intercourse without consent

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New South Wales
Court of Criminal Appeal

CITATION: GHANEM v REGINA [2008] NSWCCA 4
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 November 2007

JUDGMENT DATE:
8 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 85

DECISION: (1) Grant leave to appeal
(2) Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof, the applicant is sentenced to the following terms of imprisonment: (a) Count 1 (detain for advantage Ms A – s.90A of the Crimes Act): a fixed term of imprisonment for five years to date from 17 November 2002. That sentence will expire on 16 November 2007. (b) Count 4 (assault Ms A – s.61 of the Crimes Act): a fixed term of imprisonment for two years to date from 17 November 2001. That sentence will expire on 16 November 2003. (c) Counts 5, 6, 7, 8 and 9 (aggravated sexual intercourse without consent Ms A – s.61J(1) of the Crimes Act): imprisonment for 11 years to date from 17 November 2002. These sentences will expire on 16 November 2013. In respect of each of these sentences there will be a non-parole period of seven years. The non-parole period for these offences will expire on 16 November 2009. (d) Count 2 (detain for advantage Ms B – s.90A of the Crimes Act): a fixed term of imprisonment for five years to date from 17 November 2005. This sentence will expire on 16 November 2010. (e) Count 11 (assault Ms B – s.61 of the Crimes Act): a fixed term of imprisonment for one year to date from 17 November 2005. This sentence will expire on 16 November 2006. (f) Count 12 (aggravated sexual intercourse without consent Ms B – s.61J(1) of the Crimes Act): imprisonment for 13 years to date from 17 November 2005. That sentence will expire on 16 November 2018. A non-parole period of eight years to date from 17 November 2005. The first date upon which the applicant will be eligible for consideration of release to parole is 16 November 2013.

CATCHWORDS: CRIMINAL LAW – Application for leave to appeal against sentences – Detention of complainants for advantage – Assault – Aggravated sexual intercourse without consent (in company) – Accessorial offences and offence as principal in first degree – Wether errors in findings and approach by sentencing judge – Whether factual foundation for sentencing materially changed – Parity principle – Principle of totality for offences – Youth – Whether sentences manifestly excessive.

LEGISLATION CITED: Crimes Act 1900
Crimes (Serious Sex Offenders) Act 2006
Criminal Law Consolidation Act 1935 (SA)

CATEGORY: Principal judgment

CASES CITED: Hoare v The Queen (1989) 167 CLR 348
Power v The Queen (1974) 131 CLR 362
Radenkovic v The Queen (1990) 170 CLR 623
R v Ghanem & Ors [2004] NSWCCA 36
R v Hajeid [2005] NSWCCA 262
R v Simpson [2001] NSWCCA 534

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 Ghanem v Regina

Details

AGLC: Ghanem v Regina [2008] NSWCCA 4
Case: [2008] NSWCCA 4
Decision Date: 8 February 2008

CaseChat Overview and Summary

The appellant in this case was convicted of various serious sexual offences against two complainants. The appeal concerns the sentences imposed by the trial judge. The decision of the Court of Appeal was that the appeal against sentence was dismissed. The primary issue before the court was whether the appeal against sentence should be allowed. Specifically, the court needed to determine if there were any errors in the findings and approach by the sentencing judge, whether the factual foundation for sentencing had materially changed, and whether the sentences imposed were manifestly excessive. The court also considered the principle of parity and the principle of totality for offences, as well as the impact of the youth of the offender.

The court found that there were no errors in the sentencing judge's approach or findings. The factual foundation for sentencing remained unchanged, and the sentences imposed were not manifestly excessive. The court held that the sentencing judge had appropriately considered the principles of parity and totality, and had adequately weighed the mitigating factors, including the youth of the offender. The court found that the sentences were within the appropriate range and did not warrant interference. The appeal against sentence was dismissed.

The court further emphasised the importance of the principle of totality in sentencing multiple offences. The totality principle recognises that a person should not be punished more than once for the same act or omission. The court held that the sentencing judge had correctly applied this principle in this case. The court also noted that the sentencing judge had appropriately taken into account the youth of the offender, but had balanced this with the gravity of the offences committed. The court found that the sentences imposed were proportionate to the seriousness of the offences and did not amount to an abuse of discretion.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentences imposed by the trial judge were upheld. The appellant's conviction and sentences remained in place.

Orders