Ghoubriel v The Queen

[2016] ACTCA 66

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Ghoubriel v The Queen

Citation:

[2016] ACTCA 66

Hearing Date:

10 November 2016

DecisionDate:

5 December 2016

Before:

Penfold, Elkaim, North JJ

Decision:

See paragraph [87] below.

Catchwords:

APPEAL – JURIDISICTION, PRACTICE AND PROCEDURE – Appeal against sentence – obtain property by deception offences – whether the sentencing judge erred in applying the principle of totality – whether the absence of any degree of concurrency of the sentences has produced the error of a manifestly excessive sentence – whether sentence was manifestly excessive.

Legislation Cited:

Criminal Code 2002 (ACT), s 326

Cases Cited:

Dinsdale v The Queen [2000] HCA 54; 202 CLR 321

Mill v The Queen [1988] HCA 70; 166 CLR 59
O’Brien v The Queen [2015] ACTCA 47
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Reid [2016] ACTSC 24
R v Wheeler [2000] NSWCCA 34
The Queen v TW [2011] ACTCA 25; 6 ACTLR 18
The Queen v Williams [2014] ACTCA 30
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36

Zradkovic v The Queen [2016] ACTCA 53

Texts Cited:

D A Thomas, Principles of Sentencing – The Sentencing Policy of the Court of Criminal Appeal Division – 2^nd edition (Heinemann Educational Books Ltd, 2^nd ed, 1979)

Parties:

George Ghoubriel (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr J Lawton (Appellant)

Ms M Jones (Respondent)

Solicitors

Sharman Robertson Solicitors (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 1 of 2016

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Robinson AJ

Date of Decision:         16 December 2015

Case Title:  The Queen v Ghoubriel

Court File Number:      SCC 185A/14

Penfold J:

Introduction

1. I have had the benefit of reading in draft the judgment of Elkaim and North JJ.  I agree with their Honours that the appeal should be upheld. However, I have reached the same conclusions as their Honours for slightly different reasons, and have a slightly different view on the appropriate replacement sentence.

1. I have not re-stated background information about this matter that is set out in the judgment of Elkaim and North JJ.

Appeal grounds

1. The two appeal grounds identified on behalf of the appellant were:

   (i)That the Acting Justice erred when applying the principle of totality, namely only 2 days of concurrency with respect to all counts, such that the total aggregate sentence imposed was not just and appropriate and is manifestly excessive.

   (ii)The sentence imposed by the Acting Justice on Count 3 was manifestly excessive.

2. Appeal ground (i) appears to confuse two different kinds of appeal grounds, being a ground asserting specific error by the primary judge, and a ground asserting that the total sentence is manifestly excessive. As for appeal ground (ii), it seems highly likely that if the sentence on Count 3 had been largely or entirely concurrent with another sentence, there would have been no complaint about…