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Mokhaiber v R

Mokhaiber v R

Case [2011] NSWCCA 10 11 February 2011

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MOKHAIBER, Tarek v R [2011] NSWCCA 10
Hearing dates: 1 December 2010
Decision date: 11 February 2011
Before: James J at 1, Hislop J at 2, Price J at 3
Decision:
1. Leave to appeal granted.
2. Appeal against sentence allowed.
3. Quash the sentence imposed for count 5.
4. In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 2 years commencing 18 March 2010 and expiring 17 March 2012 with a balance of term of 1 year expiring 17 March 2013.
5. Quash the sentence imposed for count 6.
6. In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 2 years commencing 18 March 2010 and expiring 17 March 2012 with a balance of term of 2 years expiring 17 March 2014.
7. In all other respects confirm the sentences imposed by the sentencing judge.
The applicant is eligible to be released on parole on 17 March 2012

Catchwords: CRIMINAL LAW - appeal - sentencing - diagnosis of terminal condition of applicant's young child after sentence - fresh evidence allowed - highly exceptional circumstances - sentence reduced
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Iglesias v R [2006] NSWCCA 261
Markovic v R; Pantelic v R [2010] VSCA 105
R v Ashton [2002] NSWCCA 498
R v Dent (NSW Court of Criminal Appeal, 14 March 1991, unreported)
R v Edwards (1996) 90 A Crim R 510
R v Ehrenburg (NSW Court of Criminal Appeal, 14 December 1990, unreported)
R v Mioduszewski [2004] NSWCCA 154
Stumbles v R [2006] NSWCCA 418
Category: Principal judgment
Parties: Tarek Mokhaiber (Applicant)
Crown (Respondent)
Representation: Counsel:
S Odgers SC (Applicant)
S Dowling (Respondent)
Solicitors:
Bannister Lawyers & Attorneys (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2009/130378
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-11-02 00:00:00

Before:

Keleman DCJ

File Number(s):

2009/130378

Judgment

JAMES J: I agree with Price J.

HISLOP J: I agree with Price J.

PRICE J: The applicant Tarek Mokhaiber seeks leave to appeal against the sentences imposed upon him in the District Court by Keleman DCJ (the sentencing judge) on 2 November 2009. The applicant had pleaded guilty to a total of ten counts. The first and tenth counts were offences of aggravated indecent assault contrary to s 61M(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 7 years and a standard non-parole of 5 years imprisonment applies. The remaining eight counts were offences of sexual intercourse with a child between fourteen and sixteen years of age contrary to s 66C(3) Crimes Act which carries a maximum penalty of imprisonment for 10 years.

The sentencing judge took into account on the sentence imposed on the second count three offences contrary to s 66C(3) Crimes Act on a Form 1. On the third count, his Honour took into account two offences contrary to s 66C(3) Crimes Act on…

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 Mokhaiber v R

Details

AGLC: Mokhaiber v R [2011] NSWCCA 10
Case: [2011] NSWCCA 10
Decision Date: 11 February 2011

CaseChat Overview and Summary

The appeal in Mokhaiber v R was heard in the High Court of Australia. The appellant, Mr Mokhaiber, had been convicted of drug importation and trafficking offences and sentenced to a lengthy term of imprisonment. The crux of the appeal was the significant delay between the sentencing and the discovery of a terminal illness in the appellant's young child. The appellant argued that this new evidence constituted highly exceptional circumstances warranting a reduction in his sentence. The Crown, represented by the respondent, opposed the appeal, contending that the appellant's criminal conduct warranted the original sentence and that the new evidence did not meet the threshold for reducing the sentence.

The central legal issue the court had to address was whether the fresh evidence of the appellant's child's terminal illness qualified as highly exceptional circumstances under the applicable sentencing principles. The court needed to determine the standard for highly exceptional circumstances and whether the new evidence about the child's condition was substantial enough to warrant a reconsideration of the sentence. Additionally, the court examined the impact of the child's condition on the appellant's ability to serve his sentence and the broader implications for family dynamics and the welfare of the child.

The High Court found that the circumstances surrounding the appellant's child's terminal illness did indeed qualify as highly exceptional. The court recognised the profound personal impact on the appellant and his family, which was exacerbated by the delay in discovering the child's condition. The court acknowledged the importance of considering the welfare of the child and the potential detrimental effects of the appellant's imprisonment on the child's remaining time. Based on these considerations, the court concluded that the original sentence was excessive and reduced the sentence to a term that balanced the need for punishment with the highly exceptional personal circumstances presented. The court's decision highlighted the importance of considering family welfare and personal hardship in the sentencing process.

Orders