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R v Faour

R v Faour

Case [2023] NSWDC 284 28 July 2023

Discount for Late Plea

Psychiatric Disorders

General Deterrence

Specific Deterrence

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Faour [2023] NSWDC 284
Hearing dates: 21 July 2023
Date of orders: 28 July 2023
Decision date: 28 July 2023
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1) In respect of the offence to which the offender has pleaded guilty, the offender is convicted.
(2) I impose a sentence of imprisonment of 3 years, 6 months to commence on 5 June 2023 and expire on 4 December 2026.
(3) I impose a non-parole period of 2 years to expire on 4 June 2025.
(4) The earliest date the offender is eligible for release to parole is 4 June 2025.

Catchwords:
CRIME – sentencing – assault with intent to rob armed with a dangerous weapon – 5% discount for late plea – offender’s subjective background – psychiatric disorders impacting on the offence - Bugmy principles – De La Rosa considerations – prior criminal history – general and specific deterrence

Legislation Cited:
Crimes Act 1900 (NSW) s 97(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2)(m), 25D(2)(c)

Cases Cited:
Bugmy v R (2013) 249 CLR 571
Chung v R [2017] NSWCCA 48
DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 94
Imbornone v R [2017] NSWCCA 144
Ingrey v R [2016] NSWCCA 31
Lloyd v R [2022] NSWCCA 18
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Israil [2002] NSWCCA 255
R v Majstrovic [2000] NSWCCA 420
R v Qutami [2001] NSWCCA 353

Category: Sentence
Parties: Rex
Hassan Faour
Representation:
Counsel:
Mr M Valentin (offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
City Group Legal (offender)

File Number(s): 2022/143833
Publication restriction: None

JUDGMENT

Remarks on sentence

The offender is to be sentenced having pleaded guilty to the offence of assault with intent to rob armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW). The plea was entered on the second day of the trial by jury during evidence in chief of the victim, Him Kandel. The offender had pleaded not guilty to the offence for which he is being sentenced and a second count on the indictment, being armed with a firearm with intent to commit an indictable offence.
The offence carries a maximum penalty of 25 years imprisonment and there is no standard non-parole period.
The offender is entitled to a 5% reduction on an otherwise appropriate sentence: s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA).
Admitted on behalf of the Crown was the following:

C1 - Indictment

C2 - Agreed facts

C3 - Criminal history

C4 - Custodial history

Admitted on behalf of the offender was the following:

O1 – Psychological report by Andrew Wong dated 13 July 2022

O2 – Handwritten letter of Apology by Hassan Faour

O3 – Inmate Request Form dated 13 July 2023

O4 – Character testimonial of Kassem Bazzi dated 18 July 2023

Agreed Facts

The offender lived at Railway Street Kogarah, a…

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 Faour

Details

AGLC: R v Faour [2023] NSWDC 284
Case: [2023] NSWDC 284
Decision Date: 28 July 2023

CaseChat Overview and Summary

In the matter of R v Faour, the Supreme Court of Queensland was called upon to determine an appropriate sentence for the defendant, who had pleaded guilty to a charge of assault with intent to rob while armed with a dangerous weapon. The court was required to consider various factors, including the principles established by the High Court in Bugmy v The Queen, the considerations highlighted in De La Rosa v The Queen, and the offender's personal circumstances. These included a psychiatric history that had an impact on the commission of the offence, as well as the offender's criminal history. The court was tasked with balancing the principles of general and specific deterrence with the need to ensure that the sentence was proportionate to the offence committed.

The court began its analysis by considering the Bugmy principles, which emphasise the importance of understanding the offender's background and circumstances, including any psychiatric disorders that may have impacted the commission of the offence. The court noted that the offender had a history of mental health issues, which had played a role in the commission of the crime. The court also considered the De La Rosa considerations, which require the court to take into account the offender's criminal history and the need for general and specific deterrence. The court found that the offender had a prior criminal history, which included offences of violence. The court concluded that a sentence of imprisonment was necessary to achieve the aims of general and specific deterrence.

The court imposed a sentence of imprisonment of 3 years and 6 months, with a non-parole period of 2 years. The court considered the offender's personal circumstances, including their psychiatric history, and the need to balance this with the need for general and specific deterrence. The court determined that a sentence of imprisonment was necessary to achieve these aims, and that the sentence imposed was proportionate to the offence committed. The court noted that the offender had pleaded guilty, which entitled them to a 5% discount on their sentence. The court also noted that the offender had shown some remorse for their actions.

The court made several orders in relation to the sentence. The court convicted the offender in respect of the offence to which they had pleaded guilty. The court imposed a sentence of imprisonment of 3 years and 6 months, with a non-parole period of 2 years. The court determined that the earliest date the offender would be eligible for release to parole was 4 June 2025. The court also noted that the sentence would commence on 5 June 2023 and expire on 4 December 2026.

Orders

Orders of the court

(1) In respect of the offence to which the offender has pleaded guilty, the offender is convicted.

(2) I impose a sentence of imprisonment of 3 years, 6 months to commence on 5 June 2023 and expire on 4 December 2026.

(3) I impose a non-parole period of 2 years to expire on 4 June 2025.

(4) The earliest date the offender is eligible for release to parole is 4 June 2025.

Background

Background to the litigation

Full text does not contain this section.

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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Actions

Citations

R v Faour [2023] NSWDC 284

Cases Citing This Decision

No citing cases yet.

Cases Cited

Lloyd v R [2022] NSWCCA 18
Citation 1 (Para 53)

…However, in Lloyd v R [2022] NSWCCA 18 McCallum JA (with whom Hamill and Cavanagh JJ agreed) noted that the observations of Smart AJ in Qutami are sometimes mistaken for principle, and that the weight and cogency of such evidence is a matter for the individual assessment of the sentencing judge. Her Honour observed…
Imbornone v R [2017] NSWCCA 144
Citation 2 (Para 52)

…AJ in R v Qutami [2001] NSWCCA 353. His Honour's observations in this respect were the subject of further consideration by Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour discussed the care required, with reference to Qutami amongst other authorities. Beginning at [57], her Honour summarised the statements…
Chung v R [2017] NSWCCA 48
Citation 3 (Para 36)

…t duration was of little assistance to the offender where for the time the incident did occur it would have been frightening to the victim: Chung v R [2017] NSWCCA 48 [77].…
Ingrey v R [2016] NSWCCA 31
Citation 4 (Para 46)

…tic incidents, sexual abuse and financial hardship reduced his moral culpability for the offending, citing Bugmy v R (2013) 249 CLR 571; Ingrey v R [2016] NSWCCA 31. The offender contended that there should be a finding of special circumstances which is generally being interpreted by the court very widely, the effe…
Bugmy v The Queen [2013] HCA 37
Citation 5 (Para 46)

…well as his exposure to traumatic incidents, sexual abuse and financial hardship reduced his moral culpability for the offending, citing Bugmy v R (2013) 249 CLR 571; Ingrey v R [2016] NSWCCA 31. The offender contended that there should be a finding of special circumstances which is generally being interpreted by th…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 6 (Para 45)

…nunciation; R v Israil [2002] NSWCCA 255; R v Henry . Further, the mental conditions contributed to his offending in a material way; DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 94.…
Clark v R [2010] NSWCCA 94
Citation 7 (Para 45)

…ail [2002] NSWCCA 255; R v Henry . Further, the mental conditions contributed to his offending in a material way; DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 94.…
R v Israil [2002] NSWCCA 255
Citation 8 (Para 45)

…ealth conditions reduced the offender's moral culpability, thereby reducing the need for general deterrence, retribution and denunciation; R v Israil [2002] NSWCCA 255; R v Henry . Further, the mental conditions contributed to his offending in a material way; DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 94.…
R v Qutami [2001] NSWCCA 353
Citation 9 (Para 52)

…Wong. Caution is required when assessing out-of-court representations for the purpose of determining sentence, as was noted by Smart AJ in R v Qutami [2001] NSWCCA 353. His Honour's observations in this respect were the subject of further consideration by Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour discu…
R v Majstrovic [2000] NSWCCA 420
Citation 10

…] NSWCCA 31 Lloyd v R [2022] NSWCCA 18 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Israil [2002] NSWCCA 255 R v Majstrovic [2000] NSWCCA 420 R v Qutami [2001] NSWCCA 353 Category: Sentence Parties: Rex Hassan Faour Representation: Counsel: Mr M Valentin (offender) Solicitors: Office of the Director of Publi…
R v Henry [1999] NSWCCA 111
Citation 11 (Para 37)

…It was noted that the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, was authority for the proposition that absent exceptional circumstances the sentence of full-time imprisonment was to be imposed for the offence of armed robbery. It was noted that this proposition had been applied to sente…
R v Henry [1999] NSWCA 111
Citation 12 (Para 37)

…It was noted that the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, was authority for the proposition that absent exceptional circumstances the sentence of full-time imprisonment was to be imposed for the offence of armed robbery. It was noted that this proposition had been applied to sentenc…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A(2)(m), 25D(2)(c)
3 mentions (from Para 3)
Crimes Act 1900 (ACT) 97(2)
2 mentions (from Para 1)

Medium Neutral Citation:	R v Faour [2023] NSWDC 284
Hearing dates:	21 July 2023
Date of orders:	28 July 2023
Decision date:	28 July 2023
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) In respect of the offence to which the offender has pleaded guilty, the offender is convicted. (2) I impose a sentence of imprisonment of 3 years, 6 months to commence on 5 June 2023 and expire on 4 December 2026. (3) I impose a non-parole period of 2 years to expire on 4 June 2025. (4) The earliest date the offender is eligible for release to parole is 4 June 2025.
Catchwords:	CRIME – sentencing – assault with intent to rob armed with a dangerous weapon – 5% discount for late plea – offender’s subjective background – psychiatric disorders impacting on the offence - Bugmy principles – De La Rosa considerations – prior criminal history – general and specific deterrence
Legislation Cited:	Crimes Act 1900 (NSW) s 97(2) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2)(m), 25D(2)(c)
Cases Cited:	Bugmy v R (2013) 249 CLR 571 Chung v R [2017] NSWCCA 48 DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 94 Imbornone v R [2017] NSWCCA 144 Ingrey v R [2016] NSWCCA 31 Lloyd v R [2022] NSWCCA 18 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Israil [2002] NSWCCA 255 R v Majstrovic [2000] NSWCCA 420 R v Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Rex Hassan Faour
Representation:	Counsel: Mr M Valentin (offender) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) City Group Legal (offender)
File Number(s):	2022/143833
Publication restriction:	None