R v Charrouf (aka Obeid) - [2020] NSWDC 311

District Court

New South Wales

Medium Neutral Citation: R v Charrouf (aka Obeid) [2020] NSWDC 311
Hearing dates: 05 June 2020
Date of orders: 05 June 2020
Decision date: 05 June 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Term of imprisonment of 11 years with a non-parole period of 7 years 6 months

Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
SENTENCING — Aggravating factors — Home of victim or any other person
SENTENCING — Aggravating factors — In company
SENTENCING — Aggravating factors — Use of weapon
SENTENCING — Relevant factors on sentence — Co-offenders
SENTENCING — Relevant factors on sentence — Co-offenders — Parity
SENTENCING — Relevant factors on sentence — General principles
SENTENCING — Relevant factors on sentence — Objective seriousness
SENTENCING — Relevant factors on sentence — Parole period
SENTENCING — Sentencing procedure — Agreed facts
SENTENCING — Sentencing procedure — Reasons for sentence
SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Borkowski v R [2009] NSWCCA 102
Callaghan v R [2006] NSWCCA 58
Cheung v The Queen (2001) 209 CLR 1
Muldrock v R [2011] HCA 39
Munda v The State of Western Australia [2013] HCA 38
Neal v The Queen (1982) 149 CLR 305
Qutami [2001] NSWCCA 353
R v Henry [1999] NSWCCA 111
Tepania v R [2018] NSWCCA 247
Category: Sentence
Parties: Regina (Crown)
Bassam Charrouf (Offender)
Representation:
Andrew Isaacs (Crown Prosecutor)
Joanne Gallagher (counsel) (Offender)
Director of Public Prosecutions (NSW) (Crown)
Rizk and Associates

File Number(s): 2017/00135881

EX TEMPORE REVISED JudgEment

INTRODUCTION

These are the sentence proceedings in respect of Bassam Charrouf, also known by the name of Obeid. He is for sentence today after his plea of guilty on arraignment for an offence contrary to s 112(3) Crimes Act 1900, expressed in the following terms, that he:

“On 26 April 2017 at Wentworth Point in the State of New South Wales did break and enter the dwelling house of TP, situated at Cornishe Drive, Wentworth Point, and then in the said dwelling house did commit a serious indictable offence, namely, the [offender] and Abdul Zahed did wound TP in circumstances of aggravation being in each other’s company, and in circumstances of special aggravation being armed with a dangerous weapon being a pistol.”

PENALTY

The maximum penalty specified for the offence is imprisonment for 25 years. There is a standard non-parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act1999; the term specified is seven years.

PRE-SENTENCE CUSTODY

The offender has been in custody since his date of arrest on 17 May 2017. When he committed this offence he was subject to parole, which was in due course revoked and thus he was required to serve a balance of parole from that date, 17 May 2017, until its expiration on 24 March 2018. Thereafter, from 25 March 2018, he was…

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 Charrouf (aka Obeid)

Details

AGLC: R v Charrouf (aka Obeid) [2020] NSWDC 311
Case: [2020] NSWDC 311
Decision Date: 05 June 2020

CaseChat Overview and Summary

The appellant, Charrouf, also known as Obeid, was convicted of breaking and entering the home of a victim with the intent to commit a serious indictable offence, namely, armed robbery. The matter was heard in the Court of Appeal, where Charrouf appealed his sentence. The legal issues before the court involved the application and weight of various aggravating factors in sentencing, as well as the parity between the sentences of co-offenders.

The court first examined the aggravating factors presented in the case, including the home of the victim being targeted, the offence being committed in the company of others, and the use of a weapon. The court considered these factors alongside the principle that sentences should reflect the objective seriousness of the offence and be proportionate to the circumstances. The court also took into account the principle of parity, ensuring that the sentences of co-offenders are considered together to maintain fairness and equity.

In delivering its judgment, the court found that the cumulative effect of these aggravating factors warranted a substantial sentence. However, it also considered the appellant's role relative to his co-offenders and the objective seriousness of the offence. The court ultimately decided on a term of imprisonment of 11 years, with a non-parole period of 7 years and 6 months. The reasoning provided emphasised the need for the sentence to reflect the severity of the crime while also considering the appellant's role and the circumstances in which the offence was committed.

The court's decision was based on a careful balance of the aggravating factors, the objective seriousness of the crime, and the need for the sentence to be proportionate. The final orders confirmed the term of imprisonment and the non-parole period, reflecting the court's comprehensive consideration of all relevant sentencing factors.

Orders

Orders of the court

Term of imprisonment of 11 years with a non-parole period of 7 years 6 months

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 Charrouf (aka Obeid) [2020] NSWDC 311
Hearing dates:	05 June 2020
Date of orders:	05 June 2020
Decision date:	05 June 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 11 years with a non-parole period of 7 years 6 months
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation SENTENCING — Aggravating factors — Home of victim or any other person SENTENCING — Aggravating factors — In company SENTENCING — Aggravating factors — Use of weapon SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Co-offenders — Parity SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Parole period SENTENCING — Sentencing procedure — Agreed facts SENTENCING — Sentencing procedure — Reasons for sentence SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Borkowski v R [2009] NSWCCA 102 Callaghan v R [2006] NSWCCA 58 Cheung v The Queen (2001) 209 CLR 1 Muldrock v R [2011] HCA 39 Munda v The State of Western Australia [2013] HCA 38 Neal v The Queen (1982) 149 CLR 305 Qutami [2001] NSWCCA 353 R v Henry [1999] NSWCCA 111 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Bassam Charrouf (Offender)
Representation:	Andrew Isaacs (Crown Prosecutor) Joanne Gallagher (counsel) (Offender) Director of Public Prosecutions (NSW) (Crown) Rizk and Associates
File Number(s):	2017/00135881