(a) The appeal be allowed;; (b) The sentences imposed by Charteris DCJ on 4 March 2005 be quashed and in lieu thereof, the following sentences be imposed:; (i) Common Assault of 24 September 2004 (Offence 2) - five months' imprisonment fixed term commencing 4 March 2005 and concluding on 3 August 2005; (ii) Common Assault of 28 September 2004 (Offence 3) - ten (10) months' imprisonment fixed term commencing 4 April 2005 and concluding 3 February 2006; (iii) Common Assault of 28 September 2004 (Offence 4) - ten (10) months' imprisonment fixed term commencing 4 May 2005 and concluding 3 March 2006; (iv) Common Assault of 28 September 2004 (Offence 5) - ten (10) months' imprisonment fixed term commencing 4 June 2005 and concluding 3 April 2006; (v) Common Assault of 28 September 2004 (Offence 6) - ten (10) months' imprisonment fixed term commencing 4 July 2005 and concluding 3 May 2006; (vi) Assault occasioning actual bodily harm (Offence 1) - two and a half years' imprisonment commencing on 4 May 2005 and concluding on 3 November 2007 with a non-parole period of thirteen (13) months, expiring on 3 June 2006; (c) The prisoner shall be released on 3 June 2006 on parole on the usual conditions relating thereto.
CATCHWORDS:
Criminal Law - Crown Appeal - Principles - Manifest inadequacy - breach of parole - criminal history, use of - cumulative sentencing
D Arnott for the Crown H Dahanji for the Respondent
SOLICITORS:
S Kavanagh for DPP S O'Connor for Legal Aid
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
04/11/1345
LOWER COURTJUDICIAL OFFICER:
Charteris DCJ
2005/609
Grove J Howie J Rothman J
22 July 2005
R v Walid ABBOUD
Judgment
1 GROVE J: I agree with Rothman J.
2 HOWIE J: I agree with Rothman J.
3 ROTHMAN J: This matter comes before the Court pursuant to the terms of s.5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions having appealed against the sentence pronounced by his Honour Charteris DCJ on 4 March 2005 in proceedings against the respondent, Walid Abboud.
4 Mr Abboud was charged with one count of assault occasioning actual bodily harm (Offence 1) contrary to s.59 of the Crimes Act 1900 and five counts (Offences 2 to 6) of common assault contrary to s.61 of the Crimes Act
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.
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AGLC
R v Abboud [2005] NSWCCA 251
Case
[2005] NSWCCA 251
Decision Date
CaseChat Overview and Summary
In the case of R v Abboud, the appellant was convicted of breach of parole and faced sentencing by the Court of Criminal Appeal. The appellant had a significant criminal history, including multiple instances of parole breaches, and the Crown sought to impose a cumulative sentence reflecting this pattern of behaviour. The trial judge had initially imposed a sentence of imprisonment, which the Crown appealed as manifestly inadequate. The appeal centred on whether the trial judge's sentence adequately reflected the appellant's criminal history and the need for deterrence and denunciation.
The primary legal issues before the court were whether the trial judge erred in failing to sufficiently account for the appellant's extensive criminal history and the cumulative nature of his parole breaches. The court was required to consider the principles of cumulative sentencing and whether the trial judge's sentence was manifestly inadequate. The Crown argued that the sentence did not adequately reflect the appellant's persistent pattern of parole breaches and the need for general deterrence.
The court held that the trial judge did err in not sufficiently considering the appellant's criminal history and the cumulative nature of his parole breaches. The court found that the sentence imposed was manifestly inadequate and did not adequately reflect the seriousness of the appellant's criminal conduct. The appeal was allowed, and the case was remitted to the trial judge for resentencing. The court emphasised the importance of cumulative sentencing in cases where a defendant has a history of similar offending behaviour. The final orders included the quashing of the original sentence and the direction that the appellant be re-sentenced by the trial judge, with proper consideration given to the cumulative nature of his offending.