R v Elhamoud - [2019] NSWDC 429

District Court

New South Wales

Medium Neutral Citation: R v Elhamoud [2019] NSWDC 429
Hearing dates: 24 May 2019 and 7 June 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Sentenced to aggregate imprisonment of two years three months and a non parole period of 21 months.

Catchwords: Crime – Sentence - Breaking and entering a dwelling house and committing a serious indictable offence in circumstances of aggravation
Legislation Cited: Crimes Act 1900
Crimes (Domestic and Personal Violence) Act
Cases Cited: BB v R [2017] NSWCCA 189
R v Edigarov [2001] NSWCCA 436
Category: Sentence
Parties: DPP (Prosecution)
Mohamad Elhamoud (Offender)
Representation: Ms Y Prowse for DPP (Solicitor Advocate)
Mr R McCrudden for the Offender (Counsel)

File Number(s): 2017/188369
Publication restriction: None

Sentence Judgment

On 25 March 2910, the offender, Mr Elhamoud, was found guilty by a jury of an offence under s 112(2) of the Crimes Act 1900 of breaking and entering a dwelling house and committing a serious indictable offence in circumstances of aggravation, namely that he was aware that there was a person or persons present in the dwelling. The house in question was the home of the offender's estranged wife, Fatme Mouhajar, and the serious indictable offence was an assault occasioning actual bodily harm.
The maximum penalty for that offence is 20 years imprisonment and it is subject to a standard non parole period of five years. I have regard to the maximum penalty and the standard non parole period as important guideposts in my sentencing discretion.
I am also required to deal with the offender for an offence which is on a s 166 certificate under s 14(1) of the Crimes (Domestic and Personal Violence) Act, that being an offence of contravening an apprehended domestic violence order. The maximum penalty for that offence is two years' imprisonment and/or 50 penalty units.
The facts of which I am satisfied are as follows.
The offender and Ms Mouhajar commenced a relationship in August 2012 when the offender travelled to Lebanon where he and Ms Mouhajar engaged in an Islamic marriage ceremony. Although the offender returned to Australia shortly after this, Ms Mouhajar and her daughter did not come to Australia until March 2014 when they commenced to live with the offender at unit 1, number 15 Hishion Place, Georges Hall. In August 2016 the son of the offender and Ms Mouhajar was born and, at that time, the relationship between the offender and Ms Mouhajar was still a going concern.
In her evidence, Ms Mouhajar claimed that on three occasions prior to the offence, the offender had announced, by using a form of words, that the couple were divorced. The offender, in his evidence before the jury, denied this assertion. It is unnecessary for me to make any determination about whether there had, in fact, been any divorce prior to the offence because there is no dispute that events had occurred in the months leading…

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 Elhamoud

Details

AGLC: R v Elhamoud [2019] NSWDC 429
Case: [2019] NSWDC 429
Decision Date: 07 June 2019

CaseChat Overview and Summary

In the case of R v Elhamoud, the appellant was charged with breaking and entering a dwelling house and committing a serious indictable offence under the Crimes Act 1900 (NSW). The appellant's actions involved circumstances of aggravation, which included the use of force and the presence of a weapon. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was the determination of an appropriate sentence for the appellant, considering the severity of the offence and the aggravating factors.

The court considered various aspects of the case, including the appellant's criminal history, the circumstances of the offence, and the principles of sentencing outlined in the relevant legislation. The court also took into account the impact of the crime on the victim and the need to deter similar offences in the future. The appellant's legal representatives argued for a lesser sentence, citing the appellant's background and potential for rehabilitation. However, the prosecution urged the court to impose a sentence that reflected the seriousness of the crime and the need to protect the community.

After considering all the evidence and arguments presented, the court determined that the appropriate sentence for the appellant was an aggregate imprisonment of two years and three months, with a non-parole period of 21 months. The court emphasised the importance of sentencing that balances the need for punishment, deterrence, and rehabilitation. The judge acknowledged the appellant's background but stressed the gravity of the offence and the necessity to protect the community from similar crimes.

The final orders of the court were that the appellant be sentenced to an aggregate imprisonment of two years and three months, with a non-parole period of 21 months. This sentence reflects the court's consideration of the aggravating circumstances and the principles of sentencing.

Orders

Orders of the court

Sentenced to aggregate imprisonment of two years three months and a non parole period of 21 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 Elhamoud [2019] NSWDC 429
Hearing dates:	24 May 2019 and 7 June 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to aggregate imprisonment of two years three months and a non parole period of 21 months.
Catchwords:	Crime – Sentence - Breaking and entering a dwelling house and committing a serious indictable offence in circumstances of aggravation
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act
Cases Cited:	BB v R [2017] NSWCCA 189 R v Edigarov [2001] NSWCCA 436
Category:	Sentence
Parties:	DPP (Prosecution) Mohamad Elhamoud (Offender)
Representation:	Ms Y Prowse for DPP (Solicitor Advocate) Mr R McCrudden for the Offender (Counsel)
File Number(s):	2017/188369
Publication restriction:	None