R v Houzeife - [2008] NSWDC 303

CITATION: R v Houzeife [2008] NSWDC 303

HEARING DATE(S): 22 April - 1 May 2008

EX TEMPORE JUDGMENT DATE: 31 October 2008

JURISDICTION: Criminal

JUDGMENT OF: Knox SC DCJ

CATCHWORDS: Crime - Sentence - Armed robbery - Carjacking - Aggravation - Knife - In company - Drug abuse - Mental illness

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Ivimy v R [2008] NSWCCA 25
R v Bavadra (2000) 115 ACR 152
R v Sok [2000] NSWCCA 121
Hamze v R (2006) NSWCCA 36
R v Youkhana [2005] NSWCCA 231
R v Bargashoun (NSWCCA, 22/11/85, unreported)
R v Blackman (NSWCCA, 04/08/92, unreported)
Low v R (1984) 154 CLR 606
R v Rushby [1999] NSWCCA 104
R v Bus (NSWCCA, 03/11/95, unreported)
R v Underhill (NSWCCA, 09/05/86, unreported)
R v Rothapfel (NSW CCA, 26/03/92, unreported)
R v Randall (NSWCCA, 19/04/94, unreported)
R v Henry [1999] NSWCCA 111
Griffiths v R (1989) 167 CLR 372
R v De Simoni (1981) 147 CLR 383

PARTIES: Regina
Mohammed Houzeife

FILE NUMBER(S): 2007/9207

COUNSEL: Crown - Mr Harrison
Defence - Mr Parsons

JUDGMENT

1 HIS HONOUR: In the matter of Mohammed Houzeife, the offender stands for sentence on two matters.

2 Firstly, an aggravated carjacking offence that on 12 June 2008. The offender pleaded guilty to one count of aggravated carjacking pursuant to s 154C (2) of the Crimes Act 1900 NSW. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of five years imprisonment for this offence.

3 On 1 May 2008, the offender was found guilty by a jury following a trial at the Campbelltown District Court on the following count, namely that on 15 April 2007 at Merrylands in the State of New South Wales, being armed with an offensive weapon, namely a knife, did rob James Chen of a mobile phone and a wallet containing personal documents and $35 the property of James Chen.

4 Pursuant to s 97(1) of the Crimes Act 1900, the maximum penalty for that offence is 20 years imprisonment. There is no standard non-parole period for that offence.

Facts – Aggravated carjacking

5 A statement of agreed facts being exhibit S(1) was tendered and that contained matters which I think should be read out in substantial detail, particularly given that there are members of the offender’s family here.

6 On the evening of Friday 16 March 2000, the victim Zenia Williams, aged 20, was working as the night time manager at the KFC Restaurant at 274 Woodville Road, Guildford. At about 11.30pm Miss Williams completed her shift and as the manager, closed the restaurant. She then remained on site until all the KFC staff completed their individual duties and left the store. After Miss Williams exited the store, she spoke with another employee in the restaurant car park, while she waited for other staff members to leave the car park. After all staff had departed, Miss Williams entered the driver’s seat of her car, which…

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 Houzeife

Details

AGLC: R v Houzeife [2008] NSWDC 303
Case: [2008] NSWDC 303
Decision Date: 31 October 2008

CaseChat Overview and Summary

In the case of R v Houzeife, the appellant faced charges related to armed robbery and carjacking, with allegations that he committed the offences while in the company of others, using a knife, and under the influence of drugs. The case was heard in the Court of Appeal. The appellant argued that the sentence imposed by the primary judge was excessive, particularly in light of his drug dependency and mental illness. The appeal centred on the weight given to these mitigating factors and the overall sentence length.

The court was tasked with determining whether the sentence was manifestly excessive, and if so, whether it should be reduced. This involved examining the principles of sentencing, particularly the role of aggravating and mitigating factors. The court had to consider whether the primary judge appropriately balanced these factors, and if the sentence was disproportionate given the mitigating circumstances.

The Court of Appeal found that while the appellant's drug addiction and mental illness were significant mitigating factors, they did not outweigh the seriousness of the crimes committed. The court emphasised the need for general deterrence in cases involving armed robbery and carjacking. The appeal was dismissed, and the original sentence was upheld. The court concluded that the sentence was proportionate to the crimes and that the primary judge had correctly applied the sentencing principles.

Orders