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Houri v R

Houri v R

Case [2013] NSWCCA 279 12 November 2013

Criminal Liability

Sentencing

Special Circumstances

Parity

Factual Basis

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Houri v R [2013] NSWCCA 279
Hearing dates: 3 October 2013
Decision date: 12 November 2013
Before: Emmett JA at [1]
R A Hulme J at [7]
Bellew J at [52]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - aggravated armed robbery offences - offences committed whilst armed and in company against various hotels - factors amounting to special circumstances do not compel a reduction in non-parole component - special circumstances found in relation to individual sentences - asserted error in not reflecting finding of special circumstances in overall sentence - proportions in overall sentence reflected specifically stated intention of sentencing judge - no error - asserted lack of parity with co-offender - substantially different factual basis for each case - no legitimate basis for sense of grievance
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Caristo v R [2011] NSWCCA 7
Henderson v R [2012] NSWCCA 65
Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
Lau v R [2010] NSWCCA 43
R v Do [2005] NSWCCA 209
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Category: Principal judgment
Parties: Essa Houri (applicant)
Regina (Respondent)
Representation: Counsel:
Mr P Linegar (Applicant)
Ms N Adams SC (Crown)
Solicitors:
E. Diyab
Solicitor for Public Prosecutions

File Number(s): 2011/275869
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-12-12 00:00:00

Before:

Wells SC DCJ

File Number(s):

2011/275869

Judgment

EMMETT JA: The applicant seeks leave to appeal against the severity of sentences imposed in relation to offences of aggravated armed robbery committed by him. He was sentenced in the District Court on 12 December 2012 to a total effective term of 7 years and 3 months, with a minimum custodial component of 5 years and 6 months, in respect of four offences against s 97(2) of the Crimes Act1900 (NSW). The prescribed maximum penalty under that provision is imprisonment for 25 years.

The grounds upon which the applicant seeks to rely may be summarised as follows:

upon finding that special circumstances existed in relation to the applicant, the sentencing judge erred in the exercise of her discretion in failing to adequately reflect that finding in the overall non-parole period imposed; and
the applicant has a justifiable sense of grievance by reason of disparity in the finding of special circumstances and the effective non-parole period imposed on him as compared with a co-offender.

The applicant participated in the robberies committed at three hotels in February, April and June 2011. He pleaded guilty to two charges of aggravated robbery at one of the hotels. There were multiple offenders on each occasion. The offenders wore balaclavas and were armed with firearms or knives.

The sentencing judge found special circumstances in relation to the applicant by reason of his age, the fact that it would be his first time in custody and the fact that he would need a substantial…

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 Houri v R

Details

AGLC: Houri v R [2013] NSWCCA 279
Case: [2013] NSWCCA 279
Decision Date: 12 November 2013

CaseChat Overview and Summary

The appellant, Houri, appealed against the sentence imposed by the Supreme Court of New South Wales, arguing that the judge erred in failing to reduce the non-parole period in light of special circumstances. The offences involved were aggravated armed robberies committed against various hotels while armed and in the company of others. The appellant submitted that the special circumstances identified by the sentencing judge should have led to a reduction in the non-parole period. Additionally, the appellant claimed that the sentence imposed was disproportionate when compared to the sentence given to his co-offender.

The central legal issue was whether the sentencing judge erred by not reducing the non-parole period to reflect the special circumstances. The court considered whether the judge properly took into account the special circumstances and whether the sentence imposed was proportionate. The court also examined the appellant's claim of disproportionality compared to his co-offender's sentence.

The Court of Appeal held that the sentencing judge had appropriately considered the special circumstances and their impact on the sentence. The court found that while special circumstances were acknowledged, they did not mandate a reduction in the non-parole period. The overall sentence proportions reflected the sentencing judge's specific intentions. The court also noted that the factual circumstances of each case were substantially different, negating any legitimate basis for a sense of grievance regarding the disparity in sentences between the appellant and his co-offender. Consequently, the appeal was dismissed.

Orders