R v Dabboussi - [2020] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Dabboussi [2020] NSWCCA 111
Hearing dates: 17 April 2020
Decision date: 04 June 2020
Before: Bell P at [1];
Davies J at [2]
Button J at [3]
Decision:
(1) Crown appeal allowed.
(2) The sentences imposed upon the respondent on 13 December 2019 are quashed.
(3) In substitution, the respondent is sentenced for the offence of reckless wounding, taking into account the relevant Form 1, to a non-parole period of 1 year 4 months to commence on 8 January 2019 and expire on 7 May 2020, to be followed by a parole period of 11 months, to expire on 7 April 2021.
(4) The respondent is further sentenced for the offence of sexual intercourse without consent, to a non-parole period of 1 year 5 months, to commence on 8 January 2020, and expire on 7 June 2021, to be followed by a parole period of 1 year 5 months to expire on 7 November 2022.
(5) The date upon which the respondent is to be released to parole pursuant to these sentences is 7 June 2021.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – separate serious offences of sexual intercourse without consent and reckless wounding – head sentence of one offence subsumed in the sentence of the other offence – accumulation of non-parole periods by two months – whether the sentencing judge erred in considering the need for specific deterrence – whether the totality principle was appropriately applied – whether sentences manifestly inadequate – discretion to re-sentence upon finding of error – sentence structure altered with result that total head sentence and total non-parole period increased
Legislation Cited: Crimes Act 1900 (NSW), ss 35(4), 61l
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited: Cahyadi v R [2007] NSWCCA 1
R v Loveridge [2014] NSWCCA 120
Category: Principal judgment
Parties: Regina (Appellant)
Ahmad Dabboussi (Respondent)
Representation:
Counsel:
D Patch (Appellant)
P Lange & AJ Karim (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Aquila Lawyers (Respondent)

File Number(s): 2017/345404; 2019/7751
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 December 2019

Before:

English DCJ

File Number(s):

2017/345404; 2019/7751

Judgment

BELL P: I agree with Button J.
DAVIES J: I agree with Button J.
BUTTON J:

Introduction

On 13 December 2019, Mr Ahmad Dabboussi (the respondent) was sentenced for two substantive offences by her Honour Judge English in the District Court sitting at Campbelltown. Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), the Crown appeals against the sentences imposed on that day.
The respondent had pleaded guilty to the offence of sexual intercourse without consent (“the sexual offence”), with an additional offence of sexual intercourse without consent taken into account on a Form 1. He had also pleaded guilty to the offence of reckless wounding (“the wounding”), with the offences of common assault and hinder…

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 Dabboussi

Details

AGLC: R v Dabboussi [2020] NSWCCA 111
Case: [2020] NSWCCA 111
Decision Date: 04 June 2020

CaseChat Overview and Summary

In the case of R v Dabboussi, the appellant faced charges of sexual intercourse without consent and reckless wounding. The dispute centred on the sentence handed down by the trial judge, which was subsequently appealed by the Crown on the grounds of being manifestly inadequate. The appeal was heard in the Court of Appeal, which reviewed the appropriateness of the sentence in light of the principles of criminal sentencing in Australia.

The legal issues before the court were whether the sentencing judge had erred in considering the need for specific deterrence, whether the totality principle was correctly applied, and whether the sentences were manifestly inadequate. The court examined these issues in the context of the appellant's two serious offences, which involved significant harm to the victims. The Crown argued that the sentences did not adequately reflect the gravity of the crimes or provide sufficient protection to the community.

The court found that the sentencing judge had erred in the application of the totality principle, as the head sentence for one offence was subsumed in the sentence for the other, resulting in an accumulation of non-parole periods that was shorter than it should have been. The court also noted that the need for specific deterrence had not been adequately considered. As a result, the sentences were deemed to be manifestly inadequate. The court exercised its discretion to re-sentence the appellant, resulting in an altered sentence structure that increased both the total head sentence and the total non-parole period.

The final orders of the court included a re-sentence that reflected the gravity of the appellant's offences, with the total non-parole period extended by two months to appropriately account for both the crimes committed and the need for community protection. The court's decision emphasised the importance of correctly applying sentencing principles, particularly the totality principle and the need for specific deterrence, in cases involving serious offences.

Orders