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Ghobrial v R

Ghobrial v R

Case [2012] NSWCCA 221 12 October 2012

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Court of Criminal Appeal

New South Wales

Case Title: Ghobrial v R

Medium Neutral Citation: [2012] NSWCCA 221

Hearing Date(s): 30 July 2012

Decision Date: 12 October 2012

Jurisdiction:

Before: Hoeben JA at [1]
Johnson J at [2]
Button J at [3]

Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW - sentence appeal - robbery in company - no exceptional circumstances - no failure to give appropriate weight to mitigating factors - no error in failure to suspend sentences - sentence not manifestly excessive

CRIMINAL LAW - sentence appeal - robbery in company - finding of no exceptional circumstances evaluative judgment - whether error to be determined in accordance with House v King principles

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Supreme Court Act 1970

Cases Cited: Aoun v R [2011] NSWCCA 284
Elyard v R [2006] NSWCCA 43
DAO v R [2011] NSWCCA 63; (2011) 278 ALR 765
Hanania v R [2012] NSWCCA 220
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ng v R [2011] NSWCCA 227
R v Blackman and Walters [2001] NSWCCA 121
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Kain [2004] NSWCCA 143
R v Kelly (1993) 30 NSWLR 64
R v Murchie [1999] NSWCCA 424; (1999)
108 A Crim R 482
R v Pham [2005] NSWCCA 94
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Thompson [2005] NSWCCA 340
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Yuksel; R v Sirtlan [2012] NSWCCA 84
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Yang v R [2012] NSWCCA 49

Texts Cited:

Category: Principal judgment

Parties: Benjamin Samy Ghobrial (applicant)
Regina (respondent)

Representation

- Counsel: Counsel:
D Dalton SC (applicant)
J Girdham (respondent)

- Solicitors: Solicitors:
Benjamin & Leonardo Lawyers (applicant)
Solicitor for Public Prosecutions (respondent)

File number(s): 2011/40414

Decision Under Appeal

- Court / Tribunal:

- Before: Keleman DCJ

- Date of Decision: 18 November 2011

- Citation:

- Court File Number(s) 2011/40414

Publication Restriction:

JUDGMENT

Hoeben JA: I agree with Button J and the orders which he proposes.
Johnson J: I agree with Button J.
Button J: On 18 November 2011 in the District Court at Parramatta, Judge Keleman SC sentenced Benjamin Samy Ghobrial ("the applicant") for one count of robbery in company. Pursuant to s 97 of the Crimes Act 1900, the applicable maximum penalty was imprisonment for 20 years. There was no standard non-parole period attaching to the offence. His Honour sentenced the applicant to a non-parole period of 1 year 3 months, with a parole period of 1 year 3 months. Accordingly, a head sentence of 2 years 6 months with a non-parole period of 1 year 3 months was imposed. Special circumstances were found that permitted a variation of the statutory ratio; if that had not been the case, the non-parole…

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 Ghobrial v R

Details

AGLC: Ghobrial v R [2012] NSWCCA 221
Case: [2012] NSWCCA 221
Decision Date: 12 October 2012

CaseChat Overview and Summary

In this case, the appellant Ghobrial sought to appeal against his sentence, imposed for the crime of robbery in company. The appeal was heard and determined by the High Court of Australia. The appellant contended that the trial judge failed to appropriately weigh mitigating factors, did not identify exceptional circumstances, and erred in not suspending the sentences imposed. The Crown, represented by the Director of Public Prosecutions, opposed the appeal, arguing that the sentence was appropriate and that the trial judge's decisions were correct.

The legal issues before the court were whether the trial judge erred in failing to identify exceptional circumstances, in not giving appropriate weight to mitigating factors, and in not suspending the sentences. The court was also required to determine the appropriate standard of review for the trial judge's evaluative judgment regarding exceptional circumstances. The court considered the principles established in House v R and other relevant authorities to assess these issues.

The court held that the trial judge did not err in failing to identify exceptional circumstances, as the evidence did not support such a finding. The court also found that the trial judge appropriately weighed the mitigating factors and did not err in imposing the sentences. The court applied the principles from House v R to conclude that the trial judge's evaluative judgment regarding exceptional circumstances was not subject to error. Consequently, the appeal was dismissed, and the original sentence was upheld as not manifestly excessive.

No further orders were made by the court.

Orders