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R v Elcheikh

R v Elcheikh

Case [2019] ACTSC 359 20 December 2019

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Elcheikh
Citation:	[2019] ACTSC 359
Hearing Date(s):	29 August 2019, 19 December 2019, 20 December 2019
DecisionDate:	20 December 2019
Before:	Loukas-Karlsson J
Decision:	See [91].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to cause offence – using a carriage service to procure a person under 16 years – where offender provisionally diagnosed with a schizoaffective disorder – application of Verdins principles – whether registration under Crimes (Child Sex Offenders) Act 2005 (ACT) would be extra-curial punishment – whether intensive correction order appropriate
Legislation Cited:	Crimes Act 1914 (Cth) ss 16A, 16E, 20AB Crimes (Child Sex Offenders) Act 2005 (ACT) s 9 Crimes (Sentencing) Act 2005 (ACT) s 11 Criminal Code 1995 (Cth) ss 474.17, 474.26
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638 Cameron v The Queen [2002] HCA 6; 209 CLR 339 DPP (Cth) v Boyles [2016] VSCA 267 DPP (Cth) v Singh [2017] VSCA 146 DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546 DPP v Ellis [2005] VSCA 105; 11 VR 287 Elias v The Queen [2013] HCA 31; 248 CLR 483 Hili v the Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v Asplund [2010] NSWCCA 316; 216 A Crim R 48 R v Carney (No 2) [2014] ACTSC 61 R v CV [2013] ACTCA 22; 233 A Crim R 67 R v Fuller [2010] NSWCCA 192 R v Gajjar [2008] VSCA 268; 192 A Crim R 76 R v Goboly [2016] ACTSC 322 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Meyboom [2012] ACTCA 48 R v Pham [2015] HCA 39; 256 CLR 550 R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 R v TW (Supreme Court of the ACT, Burns J, 15 November 2013) R v Verdins [2007] VSCA 102; 16 VR 269 TMTW v The Queen [2008] NSWCCA 50 Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 Zdravkovic v The Queen [2016] ACTCA 53
Parties:	The Queen (Crown) Gabriel Elcheikh (Offender)
Representation:	Counsel D Rich (Crown) B Dunne/H Roberts (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 161 of 2019

LOUKAS-KARLSSON J

Introduction

On 12 July 2019, Gabriel Elcheikh (the offender) pleaded guilty to:

(a)four offences of using a carriage service to cause offence contrary to s 474.17(1) of the Criminal Code 1995 (Cth) (Criminal Code) (CC19/4347; CC19/4587; CC19/4588; CC19/4821). The maximum penalty for each of these charges is 3 years’ imprisonment and/or a fine of $37,800; and
(b)one offence of using a carriage…

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 Elcheikh

Details

AGLC: R v Elcheikh [2019] ACTSC 359
Case: [2019] ACTSC 359
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the case of R v Elcheikh, the defendant was charged with using a carriage service to cause offence under s 474.17 of the Criminal Code (Cth), and using a carriage service to procure a person under 16 years under s 474.18 of the Criminal Code (Cth). The case was heard in the Supreme Court of the Australian Capital Territory. The defendant was found guilty of the charges and was sentenced to imprisonment. The court was required to consider the appropriate sentence, taking into account the defendant's mental health and the principles set out in Verdins. The court also had to consider whether registration under the Crimes (Child Sex Offenders) Act 2005 (ACT) would amount to extra-curial punishment, and whether an intensive correction order would be appropriate.

The court found that the defendant had a provisional diagnosis of a schizoaffective disorder, which impacted his ability to control his actions. However, the court held that this did not negate his criminal responsibility. The court also held that registration under the Crimes (Child Sex Offenders) Act 2005 (ACT) would not amount to extra-curial punishment, as it was a separate legal requirement that was not imposed as part of the sentence. The court held that an intensive correction order would not be appropriate, as it would not adequately address the seriousness of the offences or protect the community.

The court ultimately sentenced the defendant to imprisonment for a total of 18 months, with a non-parole period of 12 months. The court held that the offences were of a serious nature and required a sentence that reflected the community's condemnation of the defendant's actions. The court also held that the sentence should be proportionate to the gravity of the offences and the defendant's personal circumstances. The court considered the principles of deterrence, rehabilitation, and denunciation in arriving at the sentence.

The final orders of the court included the defendant's imprisonment for 18 months, with a non-parole period of 12 months. The court also ordered that the defendant be registered under the Crimes (Child Sex Offenders) Act 2005 (ACT) for a period of 15 years. The court further ordered that the defendant be subject to a number of other conditions, including a good behaviour bond and a sex offender treatment program.

Orders

Orders of the court

See [91].

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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Citations

R v Elcheikh [2019] ACTSC 359

Cases Citing This Decision

No citing cases yet.

Cases Cited

Xiao v R [2019] NSWCCA 4
Citation 1 (Para 1)

…DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546. In NSW, the position as to utilitarian value is different to the ACT. In Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1, a five judge bench concluded at [278]: “… it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take…
Xiao v R [2018] NSWCCA 4
Citation 2 (Para 1)

…(Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546. In NSW, the position as to utilitarian value is different to the ACT. In Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1, a five judge bench concluded at [278]: “… it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is enti…
DPP (Cth) v Singh [2017] VSCA 146
Citation 3 (Para 1)

…In DPP (Cth) v Singh [2017] VSCA 146, the offender pleaded guilty to one s 474.26 offence. The offender had communicated with an undercover officer posing as a 14-year-old girl online. The graphic nature of the communications increased and ultimately the offender arranged to meet with the girl. The offender was 25…
DPP (Cth) v Boyles (a pseudonym) [2016] VSCA 267
Citation 4 (Para 1)

…ome form of mental disorder and that it may reduce moral culpability to a limited extent. However, by reference to the decision of DPP (Cth) v Boyles [2016] VSCA 267 at [43] ( Boyles ), it was submitted that because the symptoms arose from the offender voluntarily ceasing to take his medication, moral culpability…
R v Goboly [2016] ACTSC 322
Citation 5 (Para 1)

…n sentence though in this case it has not been established that it is extra-curial punishment in accordance with the authorities, see: CV; R v Goboly [2016] ACTSC 322 at [56]; R v TW (Supreme Court of the ACT, Burns J, 15 November 2013).…
Zdravkovic v The Queen [2016] ACTCA 53
Citation 6 (Para 1)

…fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] ( Zdravkovic ). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen…
Director of Public Prosecutions (Cth) v Vinod Thomas Director of Public Prosecutions (Cth) v Leung Hang Wu [2016] VSCA 237
Citation 7 (Para 1)

…gton [2016] ACTCA 10; 11 ACTLR 215 at [38] (Murrell CJ); at [132] (Refshauge ACJ and Gilmour J) ( Harrington ); cf DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546. In NSW, the position as to utilitarian value is different to the ACT. In Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1, a five judge bench…
R v Harrington [2016] ACTCA 10
Citation 8 (Para 1)

…encing for Commonwealth offences, the Court is not permitted to reduce a sentence on account of the utilitarian value of any plea: see R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at [38] (Murrell CJ); at [132] (Refshauge ACJ and Gilmour J) ( Harrington ); cf DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53…
R v Pham [2015] HCA 39
Citation 9 (Para 1)

…Part IB of the Crimes Act 1914 (Cth) ( Crimes Act ) that I must have regard to current sentencing practices throughout the Commonwealth: see R v Pham [2015] HCA 39; 256 CLR 550 at [18]; [23]-[24] ( Pham ). Regard must be had to sentencing decisions of intermediate appellate courts in comparable cases as “yardsti…
R v Carney (No 2) [2014] ACTSC 61
Citation 10 (Para 1)

…at the registration of the offender would amount to extra-curial punishment, citing R v CV [2013] ACTCA 22; 233 A Crim R 67 ( CV ), R v Carney (No 2) [2014] ACTSC 61, TMTW v The Queen [2008] NSWCCA 50 for the proposition that this is not an irrelevant consideration. It was submitted that, as the content of the mes…
Barbaro v The Queen [2014] HCA 2
Citation 11 (Para 1)

…rt IB of the Crimes Act, as well as some common law principles of sentencing, including proportionality: see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638.…
Elias v The Queen [2013] HCA 31
Citation 12 (Para 1)

…careful attention must be paid to the maximum penalty which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357; Elias v The Queen [2013] HCA 31; 248 CLR 483.…
R v CV [2013] ACTCA 22
Citation 13 (Para 1)

…ders) Act 2005 (ACT). Counsel for the offender submitted that the registration of the offender would amount to extra-curial punishment, citing R v CV [2013] ACTCA 22; 233 A Crim R 67 ( CV ), R v Carney (No 2) [2014] ACTSC 61, TMTW v The Queen [2008] NSWCCA 50 for the proposition that this is not an irrelevant cons…
R v Meyboom [2012] ACTCA 48
Citation 14 (Para 1)

…s whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 ( Mill ); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].…
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1
Citation 15 (Para 1)

…ommon law principles of sentencing, including proportionality: see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638.…
R v Asplund [2010] NSWCCA 316
Citation 16 (Para 1)

…igh school students were applying, and the position was advertised as being suitable for students. By reference to the factors set out in R v Asplund [2010] NSWCCA 316; 216 A Crim R 48, the prosecution noted the conduct was a single message, similar to those sent to other victims, the proposed behaviour was less ser…
Hili v The Queen [2010] HCA 45
Citation 17 (Para 1)

…e cases as “yardsticks” that may serve to illustrate but not define the possible range of sentences available: see Pham at [29]; Hili v the Queen [2010] HCA 45; 242 CLR 520 at [53]-[54].…
R v Fuller [2010] NSWCCA 192
Citation 18 (Para 1)

…In R v Fuller [2010] NSWCCA 192, the offender pleaded guilty to one s 474.26 offence, resulting from communications with an undercover officer posing as a 13-year-old girl. The communications were sexually explicit in nature and the offender transmitted images of himself masturbating. The offender arranged a meeting…
R v Gajjar [2008] VSCA 268
Citation 19 (Para 1)

…history. The prosecution submitted that prior good character should be given less weight in offences against children of a sexual nature: R v Gajjar [2008] VSCA 268; 192 A Crim R 76 at [27]-[29] ( Gajjar ).…
TMTW v The Queen [2008] NSWCCA 50
Citation 20 (Para 1)

…r would amount to extra-curial punishment, citing R v CV [2013] ACTCA 22; 233 A Crim R 67 ( CV ), R v Carney (No 2) [2014] ACTSC 61, TMTW v The Queen [2008] NSWCCA 50 for the proposition that this is not an irrelevant consideration. It was submitted that, as the content of the messages sent to a number of victims o…
R v Poynder [2007] NSWCCA 157
Citation 21 (Para 1)

…In R v Poynder [2007] NSWCCA 157; 171 A Crim R 544, the offender pleaded guilty to two s 474.26 offences. The offender had utilised a telephone chat service to contact a male purporting to be 15 years of age and an uncover officer posing as a 15-year-old girl. The offender offered the girl money for sexual activity…
R v Verdins [2007] VSCA 102
Citation 22 (Para 1)

…Counsel for the offender submitted that the conclusions of the report attract the principles from R v Verdins [2007] VSCA 102; 16 VR 269 ( Verdins ), specifically that “this matter is one which is a less vehicle for general deterrence and that the moral culpability of the defendant may be lessened somewhat in the…
Markarian v The Queen [2005] HCA 25
Citation 23 (Para 1)

…As with every sentencing exercise, careful attention must be paid to the maximum penalty which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357; Elias v The Queen [2013] HCA 31; 248 CLR 483.…
DPP v Ellis [2005] VSCA 105
Citation 24 (Para 1)

…The prosecution submitted that registration would not be extra-curial punishment but rather an incident of sentencing, citing DPP v Ellis [2005] VSCA 105; 11 VR 287. The caveat in that decision for exceptional circumstances at [16], was submitted not to apply in this case. In particular, it was noted the assessmen…
DPP (Cth) v Thomas [2005] VSC 85
Citation 25 (Para 1)

…10; 11 ACTLR 215 at [38] (Murrell CJ); at [132] (Refshauge ACJ and Gilmour J) ( Harrington ); cf DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546. In NSW, the position as to utilitarian value is different to the ACT. In Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1, a five judge bench concluded…
Cameron v the Queen [2002] HCA 6
Citation 26 (Para 1)

…of the offender, it indicates an acceptance of responsibility, or it shows a willingness to facilitate the course of justice: see Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [11]-[15] (Gaudron, Gummow and Callinan JJ). The prosecution submitted that, in sentencing for Commonwealth offences, the Court is no…
Mill v The Queen [1988] HCA 70
Citation 27 (Para 1)

…[64] ( Zdravkovic ). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 ( Mill ); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].…

Legislation Cited

Crimes Act 1914 (Cth) 16A, 16E, 20AB
4 mentions
Crimes (Child Sex Offenders) Act 2005 (ACT) 9
3 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT) 11
2 mentions