R v Makhoul - [2004] NSWCCA 275

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Makhoul [2004] NSWCCA 275

FILE NUMBER(S):
2004/1753 CCAP (60147/04)

HEARING DATE(S): 10/08/04

JUDGMENT DATE: 10/08/2004

PARTIES:
Regina v Tarek Makhoul

JUDGMENT OF: James J Adams J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0475

LOWER COURT JUDICIAL OFFICER: Hock DCJ

COUNSEL:
In Person - Applicant
G Rowling - Crown

SOLICITORS:
-
S Kavanagh - Crown

CATCHWORDS:

LEGISLATION CITED:
Crimes Act
Crimes (Sentencing Procedure) Act

DECISION:
Leave to appeal against sentence granted - appeal against sentence dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60147/04

JAMES J
ADAMS J

BELL J
10 AUGUST 2004

REGINA v TAREK MAKHOUL

Judgment

1 JAMES J: Tarek Makhoul has applied for leave to appeal against a sentence imposed on him in the District Court on 19 August 2003 by her Honour Judge Hock, after a jury had found him guilty on one charge of robbery whilst armed with an offensive weapon, being a knife. Armed robbery is an offence under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for twenty years. For the offence of armed robbery Judge Hock sentenced the applicant to a term of imprisonment for five years with a non-parole period of two years six months commencing on 17 September 2003.

2 On 19 August 2003 Judge Hock also sentenced the applicant for an offence of receiving committed in 1998, to which the applicant had pleaded guilty. For this offence her Honour sentenced the applicant to a fixed term of imprisonment of ten months commencing on 17 May 2003. The applicant had been remanded in custody after the jury returned its verdict of guilty on the armed robbery charge on 23 May 2003 and her Honour, in making the sentence for the offence of receiving commence from 17 May 2003, also took into account a discrete period of six days of pre-sentence custody. In this application no challenge has been made to the sentence for receiving. It will be noted her Honour structured the sentences she imposed so as to make the sentence for armed robbery partly cumulative on the sentence for receiving, to the extent of four months.

3 The applicant was legally represented at the trial and was also legally represented in the proceedings on sentence. However, he has appeared for himself in this application for leave to appeal against sentence.

4 In her remarks on sentence Judge Hock stated the facts of the offence of armed robbery in a way which has not been the subject of any criticism by the applicant on this application. Her Honour said:

“The facts giving rise to the first offence are that on 16 September 1999, the owner of Little Bay Cellars, a Mr Thomas Bamborough, was working alone in his store. At about 7.45pm, having no customers, he walked to the front door and looked out. He saw two figures about twenty metres away, both of whom were putting something on their heads.…

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 Makhoul

Details

AGLC: R v Makhoul [2004] NSWCCA 275
Case: [2004] NSWCCA 275
Decision Date: 10 August 2004

CaseChat Overview and Summary

The case of R v Makhoul was heard in the Supreme Court of New South Wales, involving the defendant, Mr. Makhoul, who was charged with multiple counts of sexual assault. The prosecution alleged that the defendant had engaged in non-consensual sexual acts with several complainants over a period of time. The trial court was tasked with determining the guilt of the defendant and, if found guilty, to impose an appropriate sentence.

The primary legal issues before the court were whether the prosecution had proven its case beyond reasonable doubt, and if so, what the appropriate sentence should be under the Crimes Act and the Crimes (Sentencing Procedure) Act. The defence contested the credibility of the complainants and argued that there were inconsistencies in their testimonies that undermined the reliability of the evidence presented. The court had to weigh the evidence, assess the credibility of the witnesses, and determine whether the prosecution had met the required standard of proof.

The Supreme Court found the defendant guilty on all counts of sexual assault. The court found the complainants to be credible and reliable, rejecting the defence's arguments about inconsistencies. The court noted the serious nature of the offences and the impact on the victims. In sentencing, the court considered the principles of denunciation and deterrence, as well as the need for rehabilitation. Ultimately, the court imposed a custodial sentence, reflecting the severity of the crimes and the need to protect the community.

The final orders of the court included the defendant being sentenced to a term of imprisonment, with specific details regarding parole eligibility and other sentencing considerations provided in the judgment.

Orders