Medium Neutral Citation: R v Kassouh [2024] NSWDC 441
Hearing dates: 20 September 2024
Date of orders: 20 September 2024
Decision date: 20 September 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 4 years 6 months imprisonment with a non-parole period of 2 years 8 months

Catchwords:
CRIME — Domestic violence — Stalking or intimidation — Break, enter and commit serious indictable offence — Circumstances of aggravation
CRIME — Violent offences — Assault occasioning actual bodily harm — Detain for advantage — Choking without consent — Use offensive weapon to commit indictable offence
CRIME — Violent offences — Back up offence — Robbery — Not guilty
CRIME — Violent offences — Common assault — Finding of guilt
CRIME — Domestic violence — Breach of Apprehended Domestic Violence Orders — Finding of guilt — Back up offence
TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Driving recklessly furiously — Back up offence withdrawn and dismissed
SENTENCING — Aggravating factors — Presence of children — Record of previous convictions — Breach of Apprehended Domestic Orders
SENTENCING — Guidelines for sentencing
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Objective seriousness — Purposes of sentencing — Moral culpability
SENTENCING — Sentencing procedure — Sentence after trial — Instinctive synthesis — Assistance in the facilitation of trial procedure
SENTENCING — Subjective considerations on sentence — Acquired Brian injury — Mental Health Disorders —Adjustment Disorder — Drug addition — Harsh discipline in childhood

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Browning v R [2015] NSWCCA 147
Cahyadi v R [2007] NSWCCA 1
Cherry v R [2017] NSWCCA 150
Christov v R [2009] NSWCCA 168
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Eaton v R [2023] NSWCCA 125
Engert v R (1995) 84 A Crim R 67
Hamidv R [2006] NSWCCA 302
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Paterson v R [2021] NSWCCA 273
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Queen v Pham [2015] HCA 59; (2015) 256 CLR 550
R v Dunn [2004] NSWCCA 346
R v Knight [2005] NSWCCA 253
R v MAK; R v MSK [2006] NSWCCA 381 (2006) 167 A Crim R 159
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Tepania v R [2018] NSWCCA 247
The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256

Texts Cited:
W Wan, S Poynton and D Weatherburn, “Does…

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 Kassouh

Details

AGLC: R v Kassouh [2024] NSWDC 441
Case: [2024] NSWDC 441
Decision Date: 20 September 2024

CaseChat Overview and Summary

In the case of R v Kassouh, the appellant faced charges related to various criminal activities, including domestic violence, assault, robbery, and traffic offences. The Supreme Court of Victoria was tasked with determining the appellant's guilt on these charges and subsequently imposing an appropriate sentence. The appellant pleaded guilty to stalking or intimidation, assault occasioning actual bodily harm, detaining for advantage, and breaching Apprehended Domestic Violence Orders, while not guilty pleas were entered for robbery and reckless driving. The court had to consider the legal principles relevant to each offence, the severity of the crimes, and the appellant's personal circumstances in determining the sentence.

The primary legal issues the court had to address were the assessment of the appellant's criminal conduct, the evaluation of aggravating factors, and the imposition of an appropriate sentence. The court had to consider the nature and severity of the crimes, the appellant's criminal history, and the presence of any mitigating factors. In assessing the appellant's culpability, the court examined the circumstances of the offences, including the presence of children, the appellant's breach of Apprehended Domestic Violence Orders, and the appellant's record of previous convictions. Additionally, the court had to consider the subjective factors, such as the appellant's acquired brain injury, mental health disorders, drug addiction, and harsh discipline in childhood, in determining the appropriate sentence.

In delivering its judgment, the court found the appellant guilty of stalking or intimidation, assault occasioning actual bodily harm, detaining for advantage, and breaching Apprehended Domestic Violence Orders. The court also found the appellant not guilty of robbery and dismissed the charge of reckless driving. In determining the sentence, the court considered the objective seriousness of the offences, the need for general deterrence, and the purposes of sentencing. The court acknowledged the appellant's personal circumstances but ultimately found that the aggravating factors outweighed the mitigating factors. The court imposed an aggregate imprisonment sentence of 4 years and 6 months, with a non-parole period of 2 years and 8 months. The court considered this sentence to be appropriate given the nature and severity of the crimes, the appellant's criminal history, and the need to protect the community.

Orders

Orders of the court

Aggregate imprisonment sentence of 4 years 6 months imprisonment with a non-parole period of 2 years 8 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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Citations

AGLC Citation

R v Kassouh [2024] NSWDC 441

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

R v Eaton
[2023] NSWCCA 125 Para 32

…hat “an assessment of objective seriousness of an offence is essential in setting the parameters of an appropriate sentencing outcome”: Eaton v R [2023] NSWCCA 125 at [60].…
Paterson v R
[2021] NSWCCA 273 Para 33

…le personal to the offender, are factors causally connected with the commission of the offences: Tepania v R [2018] NSWCCA 247 at [112]; Paterson v R [2021] NSWCCA 273 at [29]. They must be taken into account. They operate to reduce the objective seriousness of each offence.…
Tepania v The Queen
[2018] NSWCCA 247 Para 33

…of the offending those incapacities, while personal to the offender, are factors causally connected with the commission of the offences: Tepania v R [2018] NSWCCA 247 at [112]; Paterson v R [2021] NSWCCA 273 at [29]. They must be taken into account. They operate to reduce the objective seriousness of each offence.…
Cherry v R
[2017] NSWCCA 150 Para 20

…s particular attention must be given specific deterrence, general deterrence, and denunciation: Browning v R [2015] NSWCCA 147 at [4]-[9]; Cherry v R [2017] NSWCCA 150.…
R v Kilic
[2016] HCA 48 Para 20

…trusted Kassouh to keep to the terms of that order. She thought she loved him and that he loved her. He breached her trust in him: The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256. In such matters particular attention must be given specific deterrence, general deterrence, and denunciation: Browning v R [2015…
R v Pham
[2015] HCA 39 Para 39

…st be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases”: Queen v Pham [2015] HCA 59; (2015) 256 CLR 550 at [46].…
Browning v R
[2015] NSWCCA 147 Para 20

…CA 48; (2016) 259 CLR 256. In such matters particular attention must be given specific deterrence, general deterrence, and denunciation: Browning v R [2015] NSWCCA 147 at [4]-[9]; Cherry v R [2017] NSWCCA 150.…
Munda v Western Australia
[2013] HCA 38

…1) 244 CLR 120 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Paterson v R [2021] NSWCCA 273 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Queen v Pham [2015] HCA 59; (2015) 256 CLR 550 R v Dunn [2004] NSWCCA 346 R v Knight [2005] NSWCCA 25…
Muldrock v The Queen
[2011] HCA 39 Para 38

…of the offending unless there is a causal relation between the offender’s mental condition and the commission of the offence: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] and [54]. However, as the High Court in Muldrock at [28] made clear, neither can I engage in a staged approach to sentencin…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 65

…lt with in the same manner with which sentencing courts treat mental illnesses: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. That is, it requires a “sensitive discretionary decision”: Engert v R (1995) 84 A Crim R 67 (Gleeson CJ).…
Christov v R
[2009] NSWCCA 168 Para 40

…ice has been facilitated by the defence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A (1); R v Doff [2005] NSWCCA 119 at [58(c)]; Christov v R [2009] NSWCCA 168. That reduction will be synthesised along with all other relevant matters. “While indulgence in arithmetical deduction” by a sentencing judge is “not…
Cahyadi v R
[2007] NSWCCA 1 Para 59

…propriate measure of the “total criminality involved”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at [307]-[308]; Cahyadi v Regina [2007] NSWCCA 1.…
R v MAK
[2006] NSWCCA 381 Para 61

…rther, it is recognised that the severity of a sentence increases at a greater rate than any increase in the length of the sentence: R v MAK; R v MSK [2006] NSWCCA 381 (2006) 167 A Crim R 159. That said, public confidence in the administration of justice requires the Court to avoid any suggestion, that what is, in e…
R v Hamid
[2006] NSWCCA 302 Para 37

…f power, control and dominance, control that can continue even after a relationship ends: Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316; Hamid [2006] NSWCCA 302 at [77].…
R v Knight
[2005] NSWCCA 253 Para 61

…tice requires the Court to avoid any suggestion, that what is, in effect, being offered is some kind of a discount for multiple offending: R v Knight [2005] NSWCCA 253 at [112].…
Markarian v The Queen
[2005] HCA 25 Para 31

…eir significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J).…
R v Doff
[2005] NSWCCA 119 Para 40

…degree to which the administration of justice has been facilitated by the defence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A (1); R v Doff [2005] NSWCCA 119 at [58(c)]; Christov v R [2009] NSWCCA 168. That reduction will be synthesised along with all other relevant matters. “While indulgence in arithmetic…
R v Dunn
[2004] NSWCCA 346 Para 4

…The continued threat a victim never feels truly safe as they have been, and may again in the future, be personally targeted: R v Dunn [2004] NSWCCA 346.…
R v Simpson
[2001] NSWCCA 534 Para 62

…or which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Regina v Simpson
[1999] NSWCCA 367 Para 62

…er should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Osland v The Queen
[1998] HCA 75 Para 37

…lar and typically involves the exercise of power, control and dominance, control that can continue even after a relationship ends: Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316; Hamid [2006] NSWCCA 302 at [77].…
Postiglione v the Queen
[1997] HCA 26 Para 59

…[63]. The aggregation of all of the sentences must be a just and appropriate measure of the “total criminality involved”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at [307]-[308]; Cahyadi v Regina [2007] NSWCCA 1.…
Mill v The Queen
[1988] HCA 70 Para 59

…o structure the sentences such that the overall aggregate sentence is just and appropriate to the totality of the offender's crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63]. The aggregation of all of the sentences must be a just and appropriate measure of the “total criminality involved”:…

Legislation cited in this decision · 5

Crimes (Sentencing Procedure) Act 1999 (NSW)
22A, 24(a) 3 mentions (from Para 40)
Criminal Procedure Act 1986 (NSW)
167, 168 3 mentions (from Para 2)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
13(1) 2 mentions
Crimes Act 1900 (ACT)
37(1A) 2 mentions
Evidence Act 1995 (Cth)
191 2 mentions (from Para 40)

Medium Neutral Citation:	R v Kassouh [2024] NSWDC 441
Hearing dates:	20 September 2024
Date of orders:	20 September 2024
Decision date:	20 September 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 4 years 6 months imprisonment with a non-parole period of 2 years 8 months
Catchwords:	CRIME — Domestic violence — Stalking or intimidation — Break, enter and commit serious indictable offence — Circumstances of aggravation CRIME — Violent offences — Assault occasioning actual bodily harm — Detain for advantage — Choking without consent — Use offensive weapon to commit indictable offence CRIME — Violent offences — Back up offence — Robbery — Not guilty CRIME — Violent offences — Common assault — Finding of guilt CRIME — Domestic violence — Breach of Apprehended Domestic Violence Orders — Finding of guilt — Back up offence TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Driving recklessly furiously — Back up offence withdrawn and dismissed SENTENCING — Aggravating factors — Presence of children — Record of previous convictions — Breach of Apprehended Domestic Orders SENTENCING — Guidelines for sentencing SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Objective seriousness — Purposes of sentencing — Moral culpability SENTENCING — Sentencing procedure — Sentence after trial — Instinctive synthesis — Assistance in the facilitation of trial procedure SENTENCING — Subjective considerations on sentence — Acquired Brian injury — Mental Health Disorders —Adjustment Disorder — Drug addition — Harsh discipline in childhood
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Browning v R [2015] NSWCCA 147 Cahyadi v R [2007] NSWCCA 1 Cherry v R [2017] NSWCCA 150 Christov v R [2009] NSWCCA 168 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Eaton v R [2023] NSWCCA 125 Engert v R (1995) 84 A Crim R 67 Hamidv R [2006] NSWCCA 302 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Paterson v R [2021] NSWCCA 273 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Queen v Pham [2015] HCA 59; (2015) 256 CLR 550 R v Dunn [2004] NSWCCA 346 R v Knight [2005] NSWCCA 253 R v MAK; R v MSK [2006] NSWCCA 381 (2006) 167 A Crim R 159 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Tepania v R [2018] NSWCCA 247 The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256
Texts Cited:	W Wan, S Poynton and D Weatherburn, “Does…