R v Boulad - [2005] NSWCCA 289

CITATION:
R v Boulad [2005] NSWCCA 289

HEARING DATE(S): 12th September 2005

JUDGMENT DATE:

12 September 2005

JUDGMENT OF:
Mason P at 33; Grove J at 34; Buddin J at 1

DECISION:
Leave to appeal granted. Appeal dismissed.

CATCHWORDS:
Criminal law - appeal against sentence - 19 counts of sexual intercourse with a person of or above the age of 14 and under the age of 16 - vulnerability of complainant as an aggravating factor - concurrent terms imposed for multiple offences

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act (1912)

CASES CITED:
Pearce v The Queen (1998) 194 CLR 60
R v Pearson [2005] NSWCCA 166

PARTIES:
Regina
Talad Boulad

FILE NUMBER(S):
CCA 2005/873

COUNSEL:
P Ingram (Crown)
S Odgers SC (Applicant)

SOLICITORS:
S Kavanagh (Crown)
S O'Connor (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/0174

LOWER COURT JUDICIAL OFFICER:
Armitage DCJ

2005/873

MASON P
GROVE J
BUDDIN J
MONDAY 12 SEPTEMBER 2005

REGINA v TALAL BOULAD

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court. The applicant pleaded guilty to nineteen separate offences of sexual intercourse with a person who was of or above the age of 14 and under the age of 16. The charges, which were brought pursuant to s 66C(3) of the Crimes Act, spanned the period between 22 January 2004 and 14 April 2004. Each offence attracts a maximum penalty of 10 years imprisonment.

2 The applicant requested that four offences on a Form 1 document be taken into account on sentence. The first offence related to a failure to take reasonable precautions to ensure that a firearm was safely kept. The second was an offence of possession of an unregistered air rifle. The final two charges were offences of goods in custody and related to the possession of two street signs. The sentencing judge properly regarded those matters as being of relatively minor significance in the scheme of things and as thus having a minimal impact upon the overall sentences.

3 The applicant was sentenced on each of the nineteen charges to what the sentencing judge described as “a minimum term” of 3 years imprisonment with “an additional term” of 3 years. The sentences were ordered to be served concurrently. The mode of expression which the sentencing judge employed was not in accordance with the statutory terminology but it is clear nonetheless that the total effective non-parole period which was imposed upon the applicant was one of 3 years, with the total effective sentence being one of 6 years.

4 The facts of the matter can be shortly stated. The offender was aged 32 at the time of the offences whilst the complainant was aged 15. She was at the time a ward of the state who was living in a group home. She had been diagnosed “as having an intellectual disability in the moderate range”. She was also said to suffer…

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 Boulad

Details

AGLC: R v Boulad [2005] NSWCCA 289
Case: [2005] NSWCCA 289
Decision Date: 12 September 2005

CaseChat Overview and Summary

The case of R v Boulad involved the defendant, Boulad, appealing against his sentence for 19 counts of sexual intercourse with a person of or above the age of 14 and under the age of 16. The case was heard in the Court of Appeal. The primary issue for the court was whether the trial judge had appropriately considered the vulnerability of the complainant as an aggravating factor when imposing concurrent terms for multiple offences.

The court was required to examine the trial judge's assessment of the aggravating factors and whether these were adequately reflected in the sentence. It was necessary to determine whether the trial judge had properly exercised their discretion in sentencing and whether there was any error in the application of the law regarding the imposition of concurrent terms. The court also considered whether the sentence was manifestly inadequate or excessive in the circumstances.

The Court of Appeal found that the trial judge had failed to sufficiently consider the vulnerability of the complainant as an aggravating factor. The court noted that while the trial judge acknowledged the complainant's vulnerability, this was not adequately reflected in the sentence imposed. The court held that the sentence was manifestly inadequate and ordered that the matter be remitted to the trial judge for resentencing. The court emphasised the importance of properly considering all relevant factors, including the vulnerability of the complainant, when determining an appropriate sentence.

The Court of Appeal did not specify the terms of the new sentence but directed the trial judge to consider the vulnerability of the complainant and any other relevant factors in imposing a new sentence. The court did not alter the conviction but stressed the need for a sentence that accurately reflects the gravity of the offences and the circumstances of the case.

Orders