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Nchouki v The Queen

Nchouki v The Queen

Case [2023] ACTCA 8 16 February 2023

Statutory Interpretation

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Nchouki v The Queen
Citation:	[2023] ACTCA 8
Hearing Date:	1 February 2023
DecisionDate:	16 February 2023
Before:	Baker J
Decision:	Application dismissed.
Catchwords:	CRIMINAL LAW – BAIL – application for bail pending appeal – special or exceptional circumstances – stay of sentence pending appeal
Legislation Cited:	Bail Act 1992 (ACT) Criminal Code 2002 (ACT) Criminal Code Act 1995 (Cth) Telecommunications (Interception and Access) Act 1979 (Cth)
Cases Cited:	Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 Cvetanovski v R [2020] VSCA 126 Degioannis v David (No 2) [2015] ACTSC 196 Delaney v R; R v Delaney [2013] NSWCCA 150 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Incandela v The Queen (No 3) [2022] ACTCA 63 Kelly v The Queen [2015] ACTCA 35 Kember v The Queen [2022] ACTCA 51 Marotta v The Queen [1999] HCA 4; 73 ALJR 265 Monis v the Queen (2013) 249 CLR 92 Moore v Perkins [2022] ACTSC 226 Peters v The Queen (1996) 71 ALJR 309 Quzag v The Queen [2015] ACTCA 9 R v Crowther [2019] ACTSC 338 R v Nchouki [2022] ACTSC 342 Samani v The Queen [2016] ACTCA 48 Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 Singh v R [2015] ACTCA 65 The Queen v Giordano [1982] 31 SASR 241 The Queen v Quzag [2015] ACTCA 36; 198 FLR 330 United Mexican States v Cabal [2001] HCA 60; 209 CLR 165 Zreika v the Queen (2012) 223 A Crim R 460; [2012] NSWCCA 44
Parties:	Mohammed Nchouki (Applicant) The Queen (Respondent)
Representation:	Counsel S Whybrow SC (Applicant) E Roff (Respondent)
Solicitors Aulich Criminal Law (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 71 of 2022

Baker J:

Introduction

On 2 September 2022, the applicant pleaded guilty to a charge of using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) (“the offence”). The maximum penalty at the time of the offending was three years’ imprisonment.

On 7 December 2022, Mossop J (“the sentencing judge”) sentenced the applicant to 5 months’ imprisonment and made a recognisance release order permitting the applicant’s release after serving 3 months’ imprisonment, with security of $100, without surety, on the condition that he be of good behaviour for a period of two years from the date of his release. The sentence was accumulated on an unrelated existing sentence, but then backdated to take into account 30 days of pre-sentence custody. The sentence commenced on 2 January 2023. As a result, the applicant will be eligible for release on recognisance on 2 April 2023 and the sentence will expire on 2 June 2023.

On 9 January 2023, the applicant filed a Notice of Appeal against this sentence. An Amended Notice of Appeal filed on 23 January 2023 particularises four grounds of appeal, including that the sentence imposed is manifestly excessive, that…

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 Nchouki v The Queen

Details

AGLC: Nchouki v The Queen [2023] ACTCA 8
Case: [2023] ACTCA 8
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered an application for bail pending appeal made by Mohammed Nchouki (the applicant) against a sentence imposed by Mossop J. The applicant had pleaded guilty to using a carriage service to menace, harass, or offend, and was sentenced to five months' imprisonment, with a recognisance release order after serving three months. The applicant sought bail and a stay of his sentence pending the determination of his appeal against the sentence, which he argued was manifestly excessive and based on erroneous factual findings.

The primary legal issue before the Court was whether the applicant qualified for bail pending his appeal, which required demonstrating "special or exceptional circumstances" under section 9E of the Bail Act 1992 (ACT). This threshold is generally met when the custodial portion of a sentence is likely to expire before the appeal can be heard, thereby rendering the appeal nugatory. However, this is contingent on the appeal having "reasonable" or "realistic" prospects of success. The Court was therefore required to assess the prospects of success of the applicant's grounds of appeal, which included claims that the sentence was manifestly excessive, that certain factual findings by the sentencing judge were not open, and that the sentencing judge erred by not considering concurrent sentencing.

The Court reasoned that while the potential for the appeal to be rendered nugatory by the expiry of the custodial sentence could constitute special or exceptional circumstances, this was conditional on the appeal having reasonable prospects of success. The Court examined the applicant's grounds of appeal, particularly the claim of manifest excessiveness. It considered the maximum penalty, the menacing and harassing nature of the applicant's statements, his awareness of potential interception, and the fact that threats extended to the officer's wife. The Court also noted the sentencing judge's findings regarding the applicant's remorse and rehabilitation prospects. Ultimately, the Court was not satisfied that the applicant had demonstrated sufficient prospects of success on any of his grounds of appeal to justify granting bail.

Consequently, the application for bail pending appeal was dismissed.

Orders