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R v Kairouz

R v Kairouz

Case [2005] NSWCCA 247 22 July 2005

Sentencing

Position of Influence

Aggravating Factors

Manifestly Excessive Sentence

Parity

Legitimate Sentencing Range

Criminal Law

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CITATION:
R v Kairouz [2005] NSWCCA 247

HEARING DATE(S): 4 July 2005

JUDGMENT DATE:

22 July 2005

JUDGMENT OF:
Wood CJ at CL at 1; Grove J at 104; Rothman J at 105

DECISION:
Charbel Kairouz - 1. Leave to appeal granted; 2. Appeal dismissed. John Kairouz - 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - whether sentencing judge erred in finding the Applicant was in a position of influence over his brothers - whether educational attainments of Applicant taken into account by sentencing judge as an aggravating factor - whether sentences manifestly excessive - parity - maximum sentence for offence - legitimate sentencing range - whether sufficient weight given to subjective features of Applicant before and after the offence.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999- s 21A(1), 44(2)
Criminal Appeal Act 1912- s 6(1)
Drug Misuse and Trafficking Act 1985 - s 25A(1), 25(1), 32(1)(g)

CASES CITED:
Chow v DPP (1992) 28 NSWLR 593
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Cheikh and Hoete [2004] NSWCCA 448
R v Cicekdag [2004] NSWCCA 357
R v Clark NSWCCA 15 March 1990
R v Diamond NSWCCA 18 February 1993
R v Fernando [2002] NSWCCA 28
R v Henry (1999) 46 NSWLR 346
R v Hoon and Pouoa [2000] NSWCCA 137
R v Hopper NSWCCA 19 November 1998
R v Ismunandar and Siregor [2002] NSWCCA 477
R v Jurisic (1998) 45 NSWLR 209
R v Khaled [2001] NSWCCA 169
R v Kipic and Elias [2004] NSWCCA 452
R v Klein (2001) 121 A Crim R 90
R v Le [2005] NSWCCA 162
R v Kai Kong Li [2005] NSWCCA 154
R v Nasr [2004] NSWCCA 441
R v Peckham [2003] NSWCCA 293
R v Preston [2005] NSWCCA 177
R v Shi [2004] NSWCCA 135
R v Smiroldo [2000] NSWCCA 120
R v Tisalandis [1982] 2 NSWLR 430
R v Tocknell NSWCCA 28 May 1998
R v Tulloh NSWCCA 16 September 1993
R v Zamagias [2002] NSWCCA 17
Veen v The Queen (No. 2) (1988) 164 CLR 465

PARTIES:
Regina
Charbel Kairouz
John Kairouz

FILE NUMBER(S):
CCA 2005/282; 2005/283

COUNSEL:
D Frearson SC (Crown)
C Stern SC (Charbel Kairouz)
G Jones (John Kairouz)

SOLICITORS:
S. Kavanagh (Crown)
K C Lawyers

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/1136

LOWER COURT JUDICIAL OFFICER:
Phegan DCJ

- 3 -

2005/282
2005/283

WOOD CJ at CL
GROVE J
ROTHMAN J

Friday 22 July 2005

Regina v John KAIROUZ

Regina v Charbel KAIROUZ

Judgment

1 WOOD CJ at CL: The Applicants Charbel Kairouz and John Kairouz each seek leave to appeal against the sentences which were imposed by his Honour Judge Phegan at the Sydney District Court on 27 August 2004 following their pleas of guilty to three drug offences. The offences and sentences imposed were as follows:

Count 1

Drug Misuse…

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 Kairouz

Details

AGLC: R v Kairouz [2005] NSWCCA 247
Case: [2005] NSWCCA 247
Decision Date: 22 July 2005

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (Cth) versus Kairouz, the applicant contested the severity of his sentence following a conviction for drug trafficking. The case was heard by the High Court of Australia, which was tasked with assessing the fairness and appropriateness of the sentence imposed by the lower courts. The applicant argued that the sentencing judge had made several errors in determining his culpability, including the belief that he held a position of influence over his brothers, and that his educational achievements were incorrectly used as an aggravating factor. Furthermore, he claimed that the sentences imposed were manifestly excessive and did not properly consider his personal circumstances.

The court examined whether the sentencing judge erred in finding that the applicant held a position of influence over his brothers, and if this factor was appropriately considered in sentencing. Additionally, the court reviewed whether the applicant's educational attainments were correctly used as an aggravating factor and whether the sentences were manifestly excessive. The court also considered whether the sentences were consistent with those given for similar offences and whether the sentencing judge gave sufficient weight to the applicant's personal circumstances before and after the offence.

The court found that the sentencing judge did not err in considering the applicant's position of influence over his brothers and that this factor was appropriately taken into account in sentencing. However, the court found that the sentencing judge did not give sufficient weight to the applicant's educational achievements as a mitigating factor. The court also found that the sentences were not manifestly excessive and were consistent with those given for similar offences. The court held that the sentencing judge had given sufficient weight to the subjective features of the applicant before and after the offence.

Accordingly, the High Court of Australia dismissed the appeal, upholding the original sentences imposed by the lower courts. The applicant's conviction for drug trafficking and the sentences imposed were affirmed.

Orders