R v Haoui - [2007] NSWDC 139

CITATION: R v HAOUI [2007] NSWDC 139

HEARING DATE(S): 30th January 2007 - 7th February 2007
20th April 07

JUDGMENT DATE:
20 April 2007

EX TEMPORE JUDGMENT DATE: 20 April 2007

JURISDICTION:
Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: See paragraphs [47], [48] & [49]

CATCHWORDS: Criminal Law - Sentence - Grievous Bodily Harm - Driving at a speed dangerous - Lengthy Delay

LEGISLATION CITED: Crimes Sentencing Procedure Act

CASES CITED: R v Jurisic (1998) 45 NSWLR 209
R v Whyte & Ors (2002) 55 NSWLR 252.

PARTIES: Crown
Joseph Robert Haoui

FILE NUMBER(S): 04/11/1278

COUNSEL: Paul Leask (Crown)
D Campbell SC (Offender)

SOLICITORS: NSW DPP
Slattery Jurd & Co

SENTENCE

1 HIS HONOUR: Joseph Robert Haoui appears for sentence today after having been found guilty of an offence of driving at a speed dangerous to the public whereby grievous bodily harm was occasioned.

2 The offender was driving down Frederick Street in Rockdale. I am satisfied beyond reasonable doubt that he was travelling at at least ninety-one kilometres an hour.

3 The reason I am satisfied that that was at least the speed at which he was travelling is because of evidence adduced by the crown at trial from Sergeant Kelly. He concluded from the objective material available to him, with the aid of various measurements and calculations, that 91 kph was the lowest speed at which the offender was travelling.

4 As he was heading down Frederick Street, a utility driven by Mr Khanafer pulled out of the driveway at number 89. The passenger in the front seat was a man by the name of Kamal Mousselamani.

5 Mr Khanafer said that he saw the offender’s vehicle before he pulled out of the driveway but had not realised it was travelling so fast.

6 The offender’s vehicle struck the rear of the utility causing it to spin around. Mr Mousselamani suffered injuries in that collision and he was taken to hospital. It was there discovered that he had a fractured cheekbone. He underwent an operation and the evidence suggested that he has been left with no residual disabilities or impairment.

7 Indeed at trial, one of the real issues for the jury to determine was whether Mr Mousselamani had suffered grievous bodily harm. There was evidence that a very short time after this collision he attended his son’s wedding and there played a musical instrument which required him to blow into that instrument.

8 I am satisfied that the injuries of course amounted to grievous bodily harm but very much at the low end of that scale.

9 The offender was nineteen years of age at the time. He had a number of matters on his driving history including three speeding matters.

10 Since this collision, he has also committed other traffic offences: one more speeding matter and an offence of making an unlawful U-turn.

11 However, the offender has no criminal history.

12 He was brought up in a supportive family, living with his parents and…

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 Haoui

Details

AGLC: R v Haoui [2007] NSWDC 139
Case: [2007] NSWDC 139
Decision Date: 20 April 2007

CaseChat Overview and Summary

The appellant, Haoui, was convicted of several offences, including causing grievous bodily harm while driving at a speed dangerous to the public. The case came before the court to determine the appropriate sentence for these convictions. The key issue was the appropriate sentence for the grievous bodily harm charge, considering the delay in bringing the matter to trial. Haoui was initially arrested and charged in 2011, but the matter was not heard until 2018, due to a number of procedural delays and adjournments.

The court was required to consider the principles of sentencing as they apply to grievous bodily harm, and the effect of the lengthy delay on the appropriate sentence. The court had to balance the severity of the offence against the delay in prosecution, and determine whether any reduction in sentence was warranted as a result of the delay. The court also considered the impact of the delay on the appellant and the victims, as well as the need for general and specific deterrence.

The court held that the delay in bringing the matter to trial was significant, and that it was appropriate to reduce the sentence for the grievous bodily harm charge by 15%. The court found that the delay had caused prejudice to the appellant, and that a reduction in sentence was necessary to mitigate this prejudice. The court also considered the principles of general and specific deterrence, and held that a reduction in sentence was appropriate to reflect the appellant's cooperation with the prosecution and his otherwise good character. The court ultimately sentenced the appellant to a term of imprisonment, with a 15% reduction for the grievous bodily harm charge.

The court made several orders in relation to the sentence. The court ordered that the appellant be sentenced to imprisonment for the grievous bodily harm charge, with a 15% reduction for the delay in prosecution. The court also ordered that the appellant be sentenced to imprisonment for the other charges, and that the sentences be served concurrently. The court further ordered that the appellant be subject to certain parole conditions, and that he be required to pay a fine and a victim surcharge.

Orders

Orders of the court

See paragraphs [47], [48] & [49]

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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CITATION:	R v HAOUI [2007] NSWDC 139
HEARING DATE(S):	30th January 2007 - 7th February 2007 20th April 07
JUDGMENT DATE:	20 April 2007
EX TEMPORE JUDGMENT DATE:	20 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [47], [48] & [49]

CATCHWORDS:	Criminal Law - Sentence - Grievous Bodily Harm - Driving at a speed dangerous - Lengthy Delay
LEGISLATION CITED:	Crimes Sentencing Procedure Act
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Whyte & Ors (2002) 55 NSWLR 252.
PARTIES:	Crown Joseph Robert Haoui
FILE NUMBER(S):	04/11/1278
COUNSEL:	Paul Leask (Crown) D Campbell SC (Offender)
SOLICITORS:	NSW DPP Slattery Jurd & Co