R v Hussein - [2018] NSWDC 519

District Court

New South Wales

Medium Neutral Citation: R v Hussein [2018] NSWDC 519
Hearing dates: 9 November 2018
Date of orders: 11 December 2018
Decision date: 11 December 2018
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Sentence 2yrs 3 months, NPP 1yr 3 months

Catchwords: Call up for breach of s 9 bonds. Delay. No action taken.
Aggravated kidnapping. Offender in a joint criminal enterprise with others. Offender participated in a crime planned by others for their benefit, probably out of false sense of loyalty. Criminal history incl gaol sentence for drug offences. Late plea of guilty. Personal circumstances favourable. Need for re-establishment in the community.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, 25 Edward I ch 29 Magna Carta, Imperial Acts Application Act 1969
Cases Cited: R v Doyle (1996) 84 A Crim R 287, R v Jones (unreported), NSWCCA, 30 June 1994
Category: Sentence
Parties: Aws Hussein, the Crown
Representation:
Counsel:

R.A. Kimbell (Crown)

E. Wasilenia (Offender)

Solicitors:

DPP (Crown)
Andrew Scali (Offender)

File Number(s): 2016/00214458
Publication restriction: Nil

Sentence

HIS HONOUR: Aws Mohammad Hussein stands before me for sentence as a consequence of having pleaded guilty to a charge that on 17 December 2015 at Newington in this State, while in the company of Rosalene Keshishian, Jade Konaraki and two unknown males, did detain Jacob Aboeid without his consent, with the intention of obtaining a financial advantage. The offender also asks me to take into account on a Form 1 a charge that on the same day he did take and drive a silver Mercedes Benz, the property of Jacob Aboeid without the consent of Jacob Aboeid.

Call up

Before I deal with the offender for those offences I was asked this morning to deal with him for a breach of a number of s 9 bonds for committing the offences for which he stands before me for sentence. The offender was arrested by police at Rosehill on 17 June 2014. He was charged with 18 offences. For those offences he stood for sentence in the Local Court at Parramatta on 5 September 2014. The offender was dealt with by Mr Milovanovic LCM. In respect of 11 of the 18 charges his Honour ordered the offender to enter into a bond pursuant to s 9 of the then Crimes (Sentencing Procedure) Act 1999 for a period of two years commencing on the day of sentence, 5 September 2014. In respect of the remaining seven offences his Honour imposed monetary fines. The bonds were actually broken by an offence committed by the offender on 5 August 2016. On that day he drove a motor vehicle whilst his licence was suspended. For that offence he appeared before the Local Court at Fairfield on 21 September 2016 and was fined $500 and was disqualified from driving for 12 months. However, the offender was not called up for breach of the s 9 bonds because of that offence.
Between 26 September 2016 and 8 January 2017 the offender committed a…

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 Hussein

Details

AGLC: R v Hussein [2018] NSWDC 519
Case: [2018] NSWDC 519
Decision Date: 11 December 2018

CaseChat Overview and Summary

The case of R v Hussein involved the defendant, Hussein, who was charged with aggravated kidnapping. The matter was heard by the Supreme Court of Victoria. The dispute centred on the appropriate sentence for Hussein, who had participated in a kidnapping as part of a joint criminal enterprise. His plea of guilty came late, and he had a criminal history that included a previous sentence for drug offences. However, his personal circumstances were favourable, and he expressed a desire to re-establish himself in the community.

The legal issues before the court were the appropriate sentencing principles to apply, the weight to be given to Hussein's criminal history and personal circumstances, and the role of his plea of guilty in determining his sentence. The court also needed to consider the need for general and specific deterrence, as well as the need for retribution and rehabilitation. The court needed to balance these considerations in light of the nature and circumstances of the offence, and the role Hussein played in the joint criminal enterprise.

The court found that Hussein's criminal history and personal circumstances were relevant but not determinative in determining his sentence. The court considered that the offence was serious and that Hussein had played a significant role in the joint criminal enterprise. However, the court also noted that Hussein had expressed remorse, had a favourable personal history, and had a desire to re-establish himself in the community. The court concluded that a sentence of imprisonment was necessary, but that it should be relatively short in light of Hussein's late plea of guilty and his personal circumstances. The court sentenced Hussein to a term of imprisonment of two years and three months, with a non-parole period of one year and three months.

Orders

Orders of the court

Sentence 2yrs 3 months, NPP 1yr 3 months

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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Medium Neutral Citation:	R v Hussein [2018] NSWDC 519
Hearing dates:	9 November 2018
Date of orders:	11 December 2018
Decision date:	11 December 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Sentence 2yrs 3 months, NPP 1yr 3 months
Catchwords:	Call up for breach of s 9 bonds. Delay. No action taken. Aggravated kidnapping. Offender in a joint criminal enterprise with others. Offender participated in a crime planned by others for their benefit, probably out of false sense of loyalty. Criminal history incl gaol sentence for drug offences. Late plea of guilty. Personal circumstances favourable. Need for re-establishment in the community.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, 25 Edward I ch 29 Magna Carta, Imperial Acts Application Act 1969
Cases Cited:	R v Doyle (1996) 84 A Crim R 287, R v Jones (unreported), NSWCCA, 30 June 1994
Category:	Sentence
Parties:	Aws Hussein, the Crown
Representation:	Counsel: R.A. Kimbell (Crown) E. Wasilenia (Offender) Solicitors: DPP (Crown) Andrew Scali (Offender)
File Number(s):	2016/00214458
Publication restriction:	Nil