R v Boudelah

Case [1991] FCA 144


Re: THE QUEEN
And: DAVID SALAH BOUDELAH and AARON LEON CHARLSTON
Nos. ACT G66 and 67 of 1990
FED No. 144
Criminal Law - Practice and Procedure - Sentencing
100 ALR 93
28 FCR 176
53 A Crim R 148

COURT

IN THE FEDERAL COURT OF AUSTRALIA


AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Jenkinson(2) and Von Doussa(3) JJ.
CATCHWORDS

Criminal Law - Crown appeals against sentence - offences of engaging in sexual intercourse without consent in the company of another - sentences of four years' imprisonment and order for release after serving six months upon entering into recognisance containing conditions, including payment of pecuniary penalty of $2000 - disparity of sentences - evenhandedness in sentencing - desirability of adhering to general pattern of sentencing

Practice and Procedure - committal for sentence - Crown practice where Crown wishes to proceed on only some counts on which accused committed

Sentencing - relevant factors - sentencing "child" offenders

Crimes Act 1900 (NSW), ss.92C(2), 92D(2), 556B, 556C(4)(e)

Magistrates Court Act 1930, s.90A

Justices Act 1902 (NSW), s.51A

Childrens Services Act 1986, ss.5, 47, 63

Children's Protection and Young Offenders Act 1979 (SA), s.7

Parole Act 1976, ss.7(1), 21, 22

Federal Court of Australia Act 1976, s.24(1)(b), 28(1)

R. v Parker (1985) 1 NSWLR 167

Regina v Paauwe (1971) 2 NSWLR 235

Hallam v O'Dea (1979) 22 SASR 133

The Queen v S. V. and Nates 91982) 31 SASR 263

The Queen v Homer (1976) 13 SASR 377

The Queen v Bond (unreported, ACT Supreme Court, 25 May 1990)

The Queen v Kenta (unreported, ACT Supreme Court, 4 May 1988)

R. v Tait and Bartley (1979) 24 ALR 473

R. v Osenkowski (1982) 30 SASR 212

Geddes (1936) 36 SR(NSW) 554

Channon (1978) 33 FLR 433

Leach (1979) 1 A Crim R 320

R. v Hill (1982) 6 A Crim R 202

Roberts (1982) 1 WLR 133

Prindable (1979) 23 ALR 665

R. v Visconti (1982) 2 NSWLR 104

R. v Oliver (Court of Criminal Appeal, NSW, 20 March 1980, unreported)

Griffiths v The Queen (1977) 137 CLR 293

R. v Pawa (1976) 2 NZLR 190

HEARING

CANBERRA

#DATE 10:4:1991

Counsel for the Apellant: Mr G. James QC and Mr S. Madden

Solicitor for the Appellant: Director of Public Prosecutions

Counsel for the Respondent: Mr T. O'Donnell David Salah Boudelah

Solicitor for the Respondent: Legal Aid Office David Salah Boudelah

Counsel for the Respondent: Mr R. Livingston Aaron Leon Charlston

Solicitor for the Respondent: Messrs Barker and Barker Aaron Leon Charlston

ORDER

The appeal in respect of the respondent Boudelah be allowed, head sentence confirmed and non-parole period varied to one year six months.

The appeal in respect of the respondent Charlston be allowed, head sentences confirmed and non-parole period varied to one year six months, both sentences to be served concurrently.

The recommendations that the sentences be served in a minimum security establishment away from hardened offenders be confirmed.

All sentences to date from 15 October 1990.

Note: Settlement and entry of…

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Details
AGLC
R v. Boudelah, D.S. v R [1991] FCA 144 (100 ALR 93; 28 FCR 176; 53 A Crim R 148)
Case
[1991] FCA 144
Decision Date

CaseChat Overview and Summary

The appeal was brought by the Crown against the sentences given to the respondents Boudelah and Charlston, who were found guilty of engaging in sexual intercourse without consent in the company of another. The primary issue before the court was whether the sentences imposed were appropriate and if the disparity between the sentences warranted any adjustment. Specifically, the court was tasked with considering the principle of evenhandedness in sentencing and the need to adhere to the general pattern of sentencing for similar offences. The court had to assess if the sentences met the objectives of denunciation, deterrence, and rehabilitation while also ensuring that the sentences imposed on both respondents were commensurate with the gravity of their crimes.

The court found that the original sentences did not align with the general sentencing principles for similar offences. The disparity in the sentences, particularly the leniency of the six-month non-parole period for Boudelah, did not reflect the seriousness of the crimes committed. The court highlighted the importance of maintaining consistency in sentencing to uphold public confidence in the justice system. In light of these considerations, the court determined that the sentences should be adjusted to reflect the appropriate punishment for the offences. The appeal was thus allowed, and the sentences were varied to ensure a non-parole period of one year and six months for both respondents, to be served concurrently, with the recommendation that they be served in a minimum security establishment away from hardened offenders.

In light of the court's decision, the appeal in respect of Boudelah was allowed, with the head sentence confirmed and the non-parole period varied to one year and six months. The appeal in respect of Charlston was also allowed, with the head sentences confirmed and the non-parole period varied to one year and six months, to be served concurrently with Boudelah. The court confirmed the recommendation that both sentences be served in a minimum security establishment away from hardened offenders. All sentences were to date from 15 October 1990. The settlement and entry of orders were to be dealt with in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The appeal in respect of the respondent Boudelah be allowed, head sentence confirmed and non-parole period varied to one year six months.

The appeal in respect of the respondent Charlston be allowed, head sentences confirmed and non-parole period varied to one year six months, both sentences to be served concurrently.

The recommendations that the sentences be served in a minimum security establishment away from hardened offenders be confirmed.

All sentences to date from 15 October 1990.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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