R v Aboukhalil - [2019] NSWDC 408

District Court

New South Wales

Medium Neutral Citation: R v Aboukhalil [2019] NSWDC 408
Hearing dates: 27 June 2019
Date of orders: 28 June 2019
Decision date: 28 June 2019
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
(1)   Ibrahem Aboukhalil is convicted of having on 7 June 2017, at Strathfield in the State of New South Wales, in the company of Haydar Alzanati, Jason Kahla and Matthew Guirguis, robbed Zachary Kennedy of a black Subaru Impreza motor vehicle, the property of Zachary Kennedy and at the time of the robbery wounding Zachary Kennedy.
(2)   Mr Aboukhalil is sentenced to a term of imprisonment of seven years with a non-parole period of four years. The term of imprisonment will commence on 22 June 2019 and expire on 21 June 2026. The non-parole period will commence on 22 June 2019 and expire on 21 June 2023, when Mr Aboukhalil will be first eligible for parole.
(3)   I note that a Victim Impact Statement was received and considered.

Catchwords: SENTENCE — violent offence — robbery in company with wounding – parity with co-offender’s sentence – utilitarian value of plea to lesser charge
Legislation Cited: Crimes Act 1900, s 98, s 154C
Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 22A
Cases Cited: Dayment v R [2018] NSWCCA 132
Ith v R [2013] NSWCCA 280
PMW v R [2009] NSWCCA 34
R v Matthew Guirguis (District Court (NSW), Woodburne J, 22 March 2019, unrep)
R v Sio [2013] NSWSC 1872
R v Wate [2001] NSWCCA 474
Regina v Fidow [2004] NSWCCA 172
Regina v Ngo [2001] NSWCCA 15
Regina v Pham [1999] NSWCCA 362
Category: Sentence
Parties: Regina
Ibrahem Aboukhalil (Offender)
Representation:
Counsel:
Mr C Evans (Crown)
Mr T Hughes (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Elie Rahme and Associates (Offender)

File Number(s): 2017/242685
Publication restriction: None

Judgment on sentence

Ibrahem Aboukhalil was found guilty by a jury of the offence of robbery in company with wounding under s 98 of the Crimes Act 1900. This offence has a maximum penalty of 25 years’ imprisonment with a standard non-parole period of imprisonment of 7 years.
The Court must take into account all relevant matters. Factual matters include those found by the jury verdict, those matters relevant to the offence and adverse to Mr Aboukhalil that are proved beyond reasonable doubt, and those matters relevant to the offence and in favour of Mr Aboukhalil that are proved on the balance of probabilities.
The following facts are established by the jury verdict or are established beyond reasonable doubt. None of these facts were contested by Mr Aboukhalil in the sentence hearing:

Mr Aboukhalil was in the company of Haydar Alzanati, Jason Kahla and Matthew Guirguis as part of a joint criminal enterprise to rob Zachary Kennedy of his car.

At about 7pm on 7 June 2017, the four offenders met at Mr Aboukhalil’s premises before travelling to Long Street, Strathfield, about 10 minutes away, arriving at…

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 R v Aboukhalil

Details

AGLC: R v Aboukhalil [2019] NSWDC 408
Case: [2019] NSWDC 408
Decision Date: 28 June 2019

CaseChat Overview and Summary

The case before the court involved a conviction for a violent offence, specifically robbery in company with wounding. Ibrahem Aboukhalil was found guilty of robbing Zachary Kennedy of his black Subaru Impreza motor vehicle on 7 June 2017 at Strathfield, New South Wales, while also wounding Kennedy in the process. This crime was committed in the company of Haydar Alzanati, Jason Kahla, and Matthew Guirguis. The matter was heard and determined in a court of law.

The primary legal issues that the court was required to decide included the appropriate sentence for the offence committed by Mr Aboukhalil, and whether the sentence should be in parity with the sentences of his co-offenders. Additionally, the court considered the utilitarian value of Mr Aboukhalil's plea to a lesser charge, which may have influenced the sentencing outcome.

In reaching its decision, the court carefully considered the nature and circumstances of the crime, the role played by Mr Aboukhalil, and the sentences given to his co-offenders. The court also took into account the Victim Impact Statement received and considered. Ultimately, Mr Aboukhalil was sentenced to a term of imprisonment of seven years with a non-parole period of four years, with the term of imprisonment commencing on 22 June 2019 and expiring on 21 June 2026, and the non-parole period expiring on 21 June 2023.

The final orders of the court were that Mr Aboukhalil be convicted of the offence as stated, and that he be sentenced to the specified term of imprisonment with the non-parole period as noted.

Orders

Orders of the court

(1) Ibrahem Aboukhalil is convicted of having on 7 June 2017, at Strathfield in the State of New South Wales, in the company of Haydar Alzanati, Jason Kahla and Matthew Guirguis, robbed Zachary Kennedy of a black Subaru Impreza motor vehicle, the property of Zachary Kennedy and at the time of the robbery wounding Zachary Kennedy.

(2) Mr Aboukhalil is sentenced to a term of imprisonment of seven years with a non-parole period of four years. The term of imprisonment will commence on 22 June 2019 and expire on 21 June 2026. The non-parole period will commence on 22 June 2019 and expire on 21 June 2023, when Mr Aboukhalil will be first eligible for parole.

(3) I note that a Victim Impact Statement was received and considered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Aboukhalil [2019] NSWDC 408
Hearing dates:	27 June 2019
Date of orders:	28 June 2019
Decision date:	28 June 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	(1) Ibrahem Aboukhalil is convicted of having on 7 June 2017, at Strathfield in the State of New South Wales, in the company of Haydar Alzanati, Jason Kahla and Matthew Guirguis, robbed Zachary Kennedy of a black Subaru Impreza motor vehicle, the property of Zachary Kennedy and at the time of the robbery wounding Zachary Kennedy. (2) Mr Aboukhalil is sentenced to a term of imprisonment of seven years with a non-parole period of four years. The term of imprisonment will commence on 22 June 2019 and expire on 21 June 2026. The non-parole period will commence on 22 June 2019 and expire on 21 June 2023, when Mr Aboukhalil will be first eligible for parole. (3) I note that a Victim Impact Statement was received and considered.
Catchwords:	SENTENCE — violent offence — robbery in company with wounding – parity with co-offender’s sentence – utilitarian value of plea to lesser charge
Legislation Cited:	Crimes Act 1900, s 98, s 154C Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 22A
Cases Cited:	Dayment v R [2018] NSWCCA 132 Ith v R [2013] NSWCCA 280 PMW v R [2009] NSWCCA 34 R v Matthew Guirguis (District Court (NSW), Woodburne J, 22 March 2019, unrep) R v Sio [2013] NSWSC 1872 R v Wate [2001] NSWCCA 474 Regina v Fidow [2004] NSWCCA 172 Regina v Ngo [2001] NSWCCA 15 Regina v Pham [1999] NSWCCA 362
Category:	Sentence
Parties:	Regina Ibrahem Aboukhalil (Offender)
Representation:	Counsel: Mr C Evans (Crown) Mr T Hughes (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Elie Rahme and Associates (Offender)
File Number(s):	2017/242685
Publication restriction:	None