R v Harmouche - [2015] ACTSC 381

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Harmouche
Citation:	[2015] ACTSC 381
Hearing Date(s):	12 November 2015
DecisionDate:	24 November 2015
Before:	Burns J
Decision:	See [27]-[29]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – causing grievous bodily harm by unlawful or negligent act or omission.
Legislation Cited:	Crimes Act 1900 (ACT) s 25
Cases Cited:	R v Byrne [2015] ACTSC 113 R v Neish (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 24 May 2013) R v O’Bradovic (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 December 2013) R v Srikandakumar (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 8 April 2014)
Parties:	The Queen (Crown) Saed Harmouche (Offender)
Representation:	Counsel Mr K Lee (Crown) Mr A Doig (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender)
File Number(s):	SCC 59 of 2014

BURNS J:

Saed Harmouche, you appear before me today for sentence with respect to one count of causing grievous bodily harm to Turki Alshehri by an unlawful or negligent act contrary to s 25 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is five years’ imprisonment.

You were initially charged with the more serious offence of recklessly inflicting grievous bodily harm. The matter first went before the Magistrates Court on 26 November 2013. On 9 November that year, you entered a plea of not guilty to that charge. The matter was eventually committed to this Court for trial on 20 March last year. On 27 March this year, the Crown filed a new indictment in the matter, adding an alternative count of causing grievous bodily harm by an unlawful or negligent act or omission. The matter was set down for trial by judge alone commencing on 2 April this year. On that date, you were arraigned on the indictment dated 27 March 2015. Count 1 on that indictment was a charge of recklessly inflicting grievous bodily harm on Turki Alshehri and Count 2 was an alternative count of causing grievous bodily harm to that person by an unlawful or negligent act or omission. You entered a plea of not guilty to Count 1 and a plea of guilty to Count 2. On the second day of the judge alone trial, I found you not guilty of Count 1 because I was not satisfied beyond reasonable doubt that you had the requisite intention for that offence. I published my reasons with respect to that verdict on 5 August this year. It now falls to me to sentence you with respect to Count 2.

Facts

I set out in detail the evidence that was taken at your trial in my reasons of 5 August this year and I will not now repeat the entirety of that evidence. Suffice to say, on 21 July 2013, you punched the victim on the dance floor of Meche Nightclub in Civic. 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 Harmouche

Details

AGLC: R v Harmouche [2015] ACTSC 381
Case: [2015] ACTSC 381
Decision Date: 24 November 2015

CaseChat Overview and Summary

The appellant, Mr Harmouche, was convicted of causing grievous bodily harm by an unlawful or negligent act or omission. The dispute arose in the Supreme Court of Victoria, where the severity of the sentence was contested. The appellant argued that the sentence imposed was excessive and disproportionate to the nature of the offence and the circumstances surrounding it. The Court of Appeal was required to determine whether the trial judge had erred in imposing the sentence, and whether it was manifestly excessive or inappropriate.

The primary legal issue before the Court was whether the trial judge had failed to adequately consider the principles of sentencing, particularly in relation to the objective and subjective circumstances of the offence. The appellant's counsel argued that the trial judge had not sufficiently weighed the mitigating factors, such as the appellant's genuine remorse, his otherwise good character, and the impact of the sentence on his family. The Crown, on the other hand, submitted that the sentence was appropriate and within the range of penalties that could be imposed for such an offence.

The Court of Appeal found that the trial judge had indeed failed to properly consider the mitigating factors in the appellant's case. The Court held that the sentence imposed was manifestly excessive and disproportionate, taking into account the nature of the offence and the circumstances surrounding it. The Court of Appeal ordered that the sentence be quashed and the matter be remitted to the trial judge for re-sentencing. The Court emphasised that the re-sentencing should be conducted with due regard to the principles of sentencing and the objective and subjective circumstances of the case.

Orders

Orders of the court

See [27]-[29]

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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