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Haouchar v R

Haouchar v R

Case [2014] NSWCCA 227 23 October 2014

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Haouchar v R [2014] NSWCCA 227
Hearing dates: 3 October 2014
Decision date: 23 October 2014
Before: Hoeben CJ at CL: [1]
Rothman J: [2]
RA Hulme J: [46]
Decision:
1.Leave to appeal refused.

Catchwords: CRIMINAL LAW - SENTENCING - appeal - onerous conditions of employment not sufficiently considered - express reference - evidence sought to be adduced particularising conditions- no suggestion sentencing judge unaware of conditions - insufficient discount for assistance and plea of guilty - no Ellis factors - no arguable point
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bland v R [2014] NSWCCA 82
LB v R [2013] NSWCCA 70
Pearce v R (1998) 194 CLR 610
R v Ehrlich [2012] NSWCCA 38 at [67]; (2012) 219 A Crim R 415
R v Ellis (1986) 6 NSWLR 603
R v Sukkar [2006] NSWCCA 92; (1996) 172 A Crim R 151
FS v R [2009] NSWCCA 301
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: Haouchar Haouchar (Applicant)
Regina (Respondent/Crown)
Representation: Counsel:
D Stewart (Applicant)
T Smith (Respondent/Crown)
Solicitors:
Shiranica Danieli Lawyers (Applicant)
J Pheils, Solicitor for Public Prosecutions (Respondent/Crown)

File Number(s): 2013/61907
Publication restriction: None
Decision under appeal

Date of Decision:

2013-10-11 00:00:00

Before:

Mahony DCJ

File Number(s):

2012/222390

Judgment

HOEBEN CJ at CL: I agree with Rothman J.

ROTHMAN J: Haouchar Haouchar, the applicant, seeks leave to appeal the sentence imposed upon him in the District Court. The applicant pleaded guilty to the charge that between 26 August 2009 and 30 March 2012, he facilitated a car rebirthing activity that was carried out on an organised basis knowing it was a car rebirthing activity and it was carried out on an organised basis, contrary to s 154G(1) of the Crimes Act 1900.

There were two Form 1 offences, being two counts of dealing with property suspected to be proceeds of crime, contrary to s 193C(1) of the Crimes Act and the sentence imposed, taking into account the Form 1 offences, was a non-parole period of 1 year and three months, commencing 11 October 2013 and expiring 10 January 2015, with a remainder of term of 1 year and 3 months expiring on 10 April 2017.

The plea of guilty was entered on 1 August 2013 at Parramatta District Court and the applicant was sentenced on 11 October 2013. The maximum penalty for the offence for which the applicant was sentenced is 14 years' imprisonment and the legislature has established a standard non-parole period of 4 years' imprisonment.

The grounds of appeal are:

1: A miscarriage of justice was occasioned as a result of the absence of evidence as to the conditions in which the appellant was to be held in custody;

2: The discount for assistance to authorities was not an adequate reflection of the level of assistance, including consideration of the resulting…

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 Haouchar v R

Details

AGLC: Haouchar v R [2014] NSWCCA 227
Case: [2014] NSWCCA 227
Decision Date: 23 October 2014

CaseChat Overview and Summary

The case of Haouchar v R involved an appeal against a sentence imposed by the Court of Appeal in Victoria. The appellant, Mr Haouchar, had been convicted of various criminal offences and was appealing the severity of his sentence, arguing that the trial judge had not adequately considered the onerous conditions of his employment in determining the appropriate penalty. The appeal was heard by the High Court of Australia, which was asked to determine whether the lower court's failure to consider these employment conditions constituted an error that warranted a reduction in the appellant's sentence.

The central legal issue before the High Court was whether the trial judge's oversight in not expressly considering the appellant's employment conditions amounted to a significant error in the sentencing process. The appellant argued that the onerous nature of his job, which required long hours and significant stress, should have been taken into account as a mitigating factor. The Crown, however, contended that the trial judge was not unaware of these conditions and that no specific evidence had been presented to detail the extent of the appellant's employment burdens. Furthermore, the Crown argued that the appellant had not demonstrated the presence of any "Ellis" factors, which would necessitate a departure from the general principles of sentencing.

In its decision, the High Court found that while the onerous conditions of the appellant's employment might have been relevant to the sentencing process, there was no evidence to suggest that the trial judge was unaware of these conditions. The court noted that the appellant had not adduced any particularised evidence that would have allowed the trial judge to assess the impact of these employment conditions on the appellant's culpability or moral blameworthiness. Additionally, the court held that the appellant had not demonstrated any arguable point of law or error that would warrant a reduction in the sentence. Consequently, the High Court dismissed the appeal, affirming the original sentence imposed by the lower court.

Orders