R v Houri - [2008] NSWCCA 327

New South Wales
Court of Criminal Appeal

CITATION: R v Houri [2008] NSWCCA 327

HEARING DATE(S): 16 December 2008

JUDGMENT OF: Campbell JA at 29; Grove J at 1; Howie J at 30

EX TEMPORE JUDGMENT DATE: 16 December 2008

DECISION: Appeal allowed.
Respondent resentenced.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeal - Fire set in store in order to make insurance claim when business failing - Offender's significant prior record - Sentences and order for suspension manifestly inadequate

LEGISLATION CITED: s 12 Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Alameddine v R [2006] NSWCCA 317

PARTIES: REGINA - Appellant
Ralph HOURI (aka Samuel TENESELI) - Respondent

FILE NUMBER(S): CCA 2007/11325

COUNSEL: P Calvert - Appellant/Crown
R Sweet - Respondent

SOLICITORS: S Kavanagh - Public Prosecutions
Stojanovic Solicitors - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0370

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 17 October 2008

CCA 2007/11325

CAMPBELL JA
GROVE J
HOWIE J
16 December 2008

REGINA v Ralph HOURI (aka Samuel TENESELI)

JUDGMENT

1 GROVE J: This is an appeal by the Crown asserting the manifest inadequacy of sentences imposed by Solomon DCJ in Sydney District Court. Between 12 and 19 August 2008 the respondent stood trial on an indictment charging dishonestly damaging property by fire and two counts of making a false statement with intent to obtain a financial advantage. The prescribed maximum penalties for those offences are 14 years and 5 years imprisonment respectively.

2 As he was entitled, the respondent did not give evidence at trial but, after conviction, he gave evidence and agreed that he now accepted that he “participated in the offence” of which he had been found guilty by the jury. On 14 October 2008 his solicitors had arranged for him to be examined by a psychologist Dr Rowe, who prepared a report which was tendered in evidence. The respondent had read the report and testified that it provoked an insight and a realization to him of why he committed the offences.

3 On 17 October 2008 his Honour imposed sentences of 12 months, 6 months and 3 months imprisonment in respect of the sequence of offences, all of which he suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

4 In about August 2005 the respondent had negotiated the purchase of a business, which operated as a convenience store in Parramatta. He entered a lease with the owner of the premises (who was not the vendor of the business) and became obligated in respect of rent. On 2 November 2005 the respondent made a proposal to Australian Unity General Insurance for a business insurance policy which was accepted and a policy issued. The policy provided for a burglary cover of $30,000 and a fire cover of $55,000. Pursuant to the policy however, the latter was split into ingredients amounting to cover of $5,000 for stock, $20,000 for tobacco products and $30,000 for other…

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 Houri

Details

AGLC: R v Houri [2008] NSWCCA 327
Case: [2008] NSWCCA 327
Decision Date: 16 December 2008

CaseChat Overview and Summary

In the matter of the Crown versus Houri, the defendant was convicted of deliberately setting fire to a store with the intent to make an insurance claim when the business was failing. The Crown sought an appeal against the sentence imposed by the lower court, arguing that the sentence and the order for suspension were manifestly inadequate. The Court of Appeal of New South Wales was tasked with hearing the appeal.

The primary legal issue before the court was whether the sentence imposed on the defendant was manifestly inadequate. The court had to consider the nature and circumstances of the offence, the defendant's criminal history, and the need for the sentence to serve as a deterrent and to protect the community. Additionally, the court had to assess the appropriateness of the order for suspension of the sentence.

The court held that the sentence imposed was manifestly inadequate, taking into account the seriousness of the offence and the defendant's significant prior criminal record. The court found that the sentence did not reflect the gravity of the crime and did not serve as an adequate deterrent. Furthermore, the order for suspension was also deemed inappropriate as it did not adequately address the need to protect the community. The court concluded that the sentence and the order for suspension failed to achieve the necessary objectives of sentencing and therefore warranted intervention.

In light of the above findings, the Court of Appeal set aside the original sentence and substituted a more appropriate sentence. The court also revoked the order for suspension and imposed a different order that better served the objectives of sentencing. The final orders of the court were that the defendant be sentenced to a term of imprisonment with a non-parole period, and that a supervision order be imposed for a specified duration.

Orders