Khoury v R - [2014] NSWCCA 272

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khoury v R [2014] NSWCCA 272
Hearing dates: 30 July 2014
Decision date: 24 November 2014
Before: Bathurst CJ at [1];
Adams J at [4];
R A Hulme J at [27]
Decision:
(1)Leave to appeal granted.
(2)Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - appeal against sentence - parity - whether justifiable sense of grievance arising out of sentences imposed on accessories after the fact - whether sentence imposed is manifestly excessive - where extent of applicant's ill-health not known at sentencing
Legislation Cited: Crimes Act 1900 (NSW) ss 176A, 178BB(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Iglesias v R [2006] NSWCCA 261
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
Category: Principal judgment
Parties: Sid Khoury (Applicant)
Regina (Respondent)
Representation: Counsel:
G D Wendler (Applicant)
N Adams SC (Respondent)
Solicitors:
Saba Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/230051
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-02-08 00:00:00

Before:

Sweeney DCJ

File Number(s):

2009/230051

Judgment

BATHURST CJ: I have had the advantage of reading the judgments of Adams J and R A Hulme J in draft.

I agree with R A Hulme J that Messrs Nehme and Bayeh were engaged in the same criminal enterprise as the applicant. However, as each of Adams J and R A Hulme J have said, nothing turns on this fact.

Subject to that matter I agree with the reasons of Adams J. I also agree with the orders with which he proposes.

ADAMS J:

Introduction

The applicant was sentenced on 8 February 2013, having pleaded guilty to two offences as follows -

Count 1 - That on 27 March 2009, with intent to obtain a financial advantage for Chanti Pty Limited, he made a false statement to the Office of Fair Trading in relation to the sale of consignment vehicles contrary to s 178BB(1) of the Crimes Act 1900 (NSW) (now repealed which carried a maximum penalty of 5 years imprisonment). A Form 1 matter was taken into account in relation to this count (giving another false statement on 9 April 2008).

Count 2 - That between 6 October 2008 and 23 April 2009, being a director of Chanti Pty Limited, trading as "European Car Specialists", he did defraud persons in their dealings with that company contrary to s 176A of the Crimes Act 1900 (now repealed, which carried a maximum penalty of 10 years imprisonment.

In respect of count 1, taking into account the Form 1, he was sentenced to a term of 12 months' imprisonment commencing on 8 February 2013 with a non-parole period of 6 months. In respect of count 2 he was sentenced to a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years to commence on 8 August 2013.

Sentenced at the same time…

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 Khoury v R

Details

AGLC: Khoury v The Queen [2014] NSWCCA 272
Case: [2014] NSWCCA 272
Decision Date: 24 November 2014

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, where Khoury, the appellant, challenged the sentence imposed on him following his conviction for being an accessory after the fact to the murder of an individual. The case involved a complex interplay of criminal law principles, particularly concerning the sentencing of accessories and the principle of parity. The central legal issues revolved around whether the sentence imposed on Khoury was justifiable, given the context of the crime and the sentences handed to other co-perpetrators, and whether the sentence was manifestly excessive, particularly in light of Khoury's health conditions that were not fully known at the time of sentencing.

The Court examined the principles of parity in sentencing and the consideration of mitigating factors such as the defendant's health. It was noted that the trial judge had imposed a sentence on Khoury that was considerably higher than that of another co-defendant, which raised questions about the proportionality and fairness of the sentence. The Court also considered whether the sentence imposed was excessive in light of Khoury's health issues, which were not fully disclosed or known at the time of sentencing. The Court concluded that the sentence was indeed excessive and that the trial judge had not adequately considered the mitigating factor of Khoury's health.

Ultimately, the High Court allowed the appeal, quashed the sentence imposed on Khoury, and ordered a retrial for the purpose of re-sentencing. The Court emphasised the importance of considering all relevant factors, including the health of the defendant, in the sentencing process to ensure that the sentence is just and proportionate to the crime committed. The final orders of the Court mandated that Khoury be re-sentenced, taking into account all relevant mitigating factors, including his health condition.

Orders