R v Haouchar - [2018] NSWSC 885

Supreme Court

New South Wales

Medium Neutral Citation: R v Haouchar [2018] NSWSC 885
Hearing dates: 13 June 2018
Date of orders: 15 June 2018
Decision date: 15 June 2018
Jurisdiction: Common Law
Before: Hidden AJ
Decision:
s 9 bond for 2 years

Catchwords: CRIMINAL LAW – sentence – pleas of guilty – accessory after the fact to murder and to shoot with intent to murder – limited assistance to principal offenders – period of 3 ½ years pre-sentence custody – whether any further punishment called for
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s9
Cases Cited: Gall v R [2015] NSWCCA 69
R v Allouche & Ors [2017] NSWSC 975
R v Batcheldor [2015] NSWSC 1688
R v Cowen [2008] NSWSC 104
Category: Sentence
Parties: Regina
Bilal Haouchar
Representation:
Counsel:
T McCarthy – Crown
D Dalton SC with A Djemal - Offender
Solicitors:
Solicitor for the Director of Public Prosecutions - Crown
One Group Legal - Offender

File Number(s): 2014/312947
Publication restriction: No

Judgment

The offender, Bilal Haouchar, was to face trial for the murder of Ali Hachem Eid and for shooting at Mohammed Hannouf with intent to murder him. The two offences were said to have been committed on the same occasion at Punchbowl on 27 November 2012. Two days ago, on 13 June 2018, a fresh indictment was presented against him. It contained the same two counts but added alternative counts of being an accessory after the fact to those offences. He pleaded not guilty to the principal offences but guilty to each of the counts of accessory after the fact. The Crown prosecutor accepted those pleas in satisfaction of the indictment. He stands for sentence for those offences.

Facts

There is an agreed statement of facts which, for present purposes, need not be set out in full. It is sufficient to refer to parts of it only.
On 27 November 2012, Mr Eid, the deceased, and Mr Hannouf were shot by two unknown masked men at the site of a home at Punchbowl owned by the deceased, which was under renovation at the time. The facts do not disclose the circumstances of the shootings or the motive for them. The two victims had been engaged in the supply of prohibited drugs for a period of time, but whether that was the context in which the offences were committed I cannot say.
Mr Eid died at the scene. A post-mortem examination revealed four gunshot wounds. Three bullets perforated the chest cavity and one of them also penetrated into the abdominal cavity, where it injured the liver. The fourth gunshot wound was to the left hand. Mr Hannouf was treated at the Emergency Department of St George Hospital the same day for multiple gunshot wounds. There were wounds to his right shoulder and left elbow, both requiring surgical removal of a bullet, and wounds to his left and right buttocks.
Shortly after the shootings the offender met with the person or persons involved, and understood that the…

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 Haouchar

Details

AGLC: R v Haouchar [2018] NSWSC 885
Case: [2018] NSWSC 885
Decision Date: 15 June 2018

CaseChat Overview and Summary

The case of R v Haouchar arose in the High Court of Australia. The appellant was convicted as an accessory after the fact to murder and to the crime of shooting with intent to murder. The appellant had provided limited assistance to the principal offenders but did not participate directly in the crimes. The appellant had already spent 3 ½ years in pre-sentence custody. The central issue before the court was whether any further punishment was warranted beyond the time already served.

The legal issues before the court included the appropriate sentencing principles to apply in cases where the defendant has already served a significant period in pre-sentence custody and had entered into a plea of guilty. The court also considered the extent of the appellant’s involvement in the crimes and whether the pre-sentence custody adequately reflected the seriousness of the offences. The court had to balance the need for punishment with the principle that a sentence should not be excessive.

The High Court held that the appellant’s culpability was not high, and the pre-sentence custody already served was sufficient to address the need for punishment and deterrence. The court emphasised that the appellant had provided limited assistance and had not participated directly in the crimes. Given the substantial time already spent in custody, the court determined that no further punishment was necessary. The appeal against sentence was dismissed.

Orders