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R v Fouani

R v Fouani

Case [2018] NSWCCA 230 17 October 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Fouani [2018] NSWCCA 230
Hearing dates: 31 August 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Before: Hoeben CJ at CL at [1];
Walton J at [71];
Button J at [72]
Decision:
(1) Crown appeal allowed.
(2) The aggregate sentence imposed by Whitford SC DCJ on 16 March 2018 is quashed and in lieu thereof the respondent is sentenced to imprisonment with a non-parole period of 13 years and 6 months, commencing 11 April 2013 and expiring 10 October 2026, with a balance of term of 4 years and 6 months, expiring 10 April 2031.

Catchwords: CRIMINAL LAW – Crown appeal – cause grievous bodily harm with intent to cause grievous bodily harm and recruit child to carry out criminal activity – offender found guilty after trial – petrol poured over victim and then ignited – offender coerced minor into performing the acts giving rise to Count 1 – whether sentence manifestly inadequate – scarring over 45 per cent of victim’s body – lack of contrition or remorse by offender – considerable planning involved – objective seriousness towards upper level – Crown appeal made out – need to re-sentence offender.
Legislation Cited: Crimes Act 1900 (NSW) – ss 33(1)(b), 351A(2)
Criminal Appeal Act 1912 (NSW) – s 5D
Cases Cited: CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v CTG [2017 NSWCCA 163
R v Harris [2015] NSWCCA 81
The Queen v Kilic [2016] HCA 48; 259 CLR 256
Category: Principal judgment
Parties: Regina – Applicant Crown
Mohammed Ali Fouani – Respondent
Representation:
Counsel:
B Baker – Applicant Crown
G Wendler – Respondent
Solicitors:
Solicitor for Public Prosecutions – Applicant Crown
Fay Rose Legal – Respondent

File Number(s): 2012/225374
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 March 2018

Before:

Whitford SC DCJ

File Number(s):

2012/225374

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The respondent was charged with the following offences:

Count 1 – Cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) Crimes Act 1900 (NSW) (“Crimes Act”). This offence carries a maximum penalty of imprisonment for 25 years with a non-parole period of 7 years.

Count 2 – Recruit a child to carry out criminal activity, contrary to s 351A(2) of the Crimes Act. This offence carries a maximum penalty of imprisonment for 10 years.

The respondent pleaded not guilty to…

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 Fouani

Details

AGLC: R v Fouani [2018] NSWCCA 230
Case: [2018] NSWCCA 230
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the case of R v Fouani, the appellant was found guilty by a jury of causing grievous bodily harm with intent to cause grievous bodily harm, and recruiting a child to carry out criminal activity. The events in question involved the appellant pouring petrol over a victim and igniting it, causing severe injuries. The minor coerced by the appellant carried out the acts that gave rise to Count 1. The Crown appealed against the sentence, arguing it was manifestly inadequate.

The legal issues before the court included whether the sentence imposed was manifestly inadequate given the objective seriousness of the crime. Factors considered included the extensive planning involved, the lack of contrition or remorse by the offender, and the severe injuries sustained by the victim, who suffered scarring over 45 per cent of their body. The court also needed to determine the appropriate level of objective seriousness and the necessity of re-sentencing the offender.

The court found that the original sentence was indeed manifestly inadequate, given the gravity of the offences. The acts committed involved considerable planning, and the injuries inflicted on the victim were of extreme severity. The court noted the absence of contrition or remorse by the offender, and the objective seriousness of the crime warranted a sentence towards the upper end of the scale. Consequently, the Crown’s appeal was upheld, and the court ordered a re-sentencing hearing to be conducted.

Orders