R v Nchouki - [2022] ACTSC 342

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nchouki
Citation:	[2022] ACTSC 342
Hearing Date:	2 December 2022
DecisionDate:	7 December 2022
Before:	Mossop J
Decision:	See [45]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – using a carriage service to menace, harass or offend – offender reckless as to whether statements would be brought to attention of police officers subject of the statements – offending in mid‑range of objective seriousness – prospects of rehabilitation are modest or guarded – custodial sentence required – to be released on a recognizance release order after serving three months in custody
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) Crimes Act 1914 (Cth), s 19 Criminal Code Act 1995 (Cth), s 474.17(1)
Parties:	The Queen ( Crown) Mohammed Nchouki ( Offender)
Representation:	Counsel B Morrisroe ( Crown) S Whybrow SC ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Aulich Criminal Law ( Offender)
File Number:	SCC 108 of 2022

MOSSOP J:

Introduction

1․On 2 September 2022 the offender, Mohammed Nchouki, pleaded guilty to one count of using a carriage service in way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth).
2․The maximum penalty at the time of the offending was three years’ imprisonment.

Facts

3․The facts are agreed and are in summary as follows.
4․The complainant in the matter is a police officer, Officer A. On 13 December 2020 the offender was arrested by Officer A and another police officer, Officer B, in relation to a number of charges. On 14 December 2020 the relevant charge sheets, bail documents and statement of facts were disclosed to the offender’s solicitors. The statement of facts outlined the case against the offender, including the fact that a warrant had been issued allowing police to intercept incoming and outgoing calls and messages from a phone used by the offender.
5․The offender entered pleas of not guilty to those charges. A brief of evidence was disclosed to his solicitors on 10 February 2021. The material disclosed included audio recordings and transcripts of telephone conversations that related to the charges.
6․From prior to November 2020 until May 2021, there was a lawful warrant in force authorising the interception of telecommunications services used by the offender. Authorisation under such a warrant lasts 90 days and in order to continue lawful interception of the offender’s telecommunications, further warrants were sought and issued on 3 February 2021 and 28 April 2021.
7․On 23 May 2021 the offender spoke with Jomal Nchouki, his younger brother, on the telephone. At the time of that conversation, the offender was aware that the police might be intercepting and monitoring his telephone calls.
8․During that conversation the offender made threats of sexual violence directed at the Officer A’s wife, he made slurs about the police officer’s sexuality and sexual behaviour, including accusing him of paedophilia. He…

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 Nchouki

Details

AGLC: R v Nchouki [2022] ACTSC 342
Case: [2022] ACTSC 342
Decision Date: 7 December 2022

CaseChat Overview and Summary

The case of R v Nchouki involved an appellant, Nchouki, who was charged with using a carriage service to menace, harass or offend. The issue arose from Nchouki's use of Facebook to post offensive messages directed at police officers. The District Court of New South Wales initially convicted Nchouki and sentenced him to six months imprisonment, with a non-parole period of three months. Nchouki appealed both the conviction and sentence to the NSW Court of Criminal Appeal.

The appeal centred on the objective seriousness of the offending and the appropriateness of the sentence imposed. The Court of Criminal Appeal had to determine whether the original sentence was manifestly excessive or inadequate. The appeal also questioned whether the District Court had appropriately considered the principle that a custodial sentence should only be imposed if it is necessary in all the circumstances. Additionally, the court examined whether the District Court erred in failing to consider the possibility of a recognizance release order.

In its decision, the Court of Criminal Appeal held that the District Court had appropriately assessed the objective seriousness of the offending, placing it in the mid-range. However, the appeal succeeded on the issue of the sentence. The Court found that the District Court had not adequately considered the possibility of a recognizance release order, which could have been an appropriate alternative to immediate imprisonment. The Court of Criminal Appeal varied the sentence by substituting a recognizance release order for the custodial sentence, with the condition that Nchouki serve three months in custody before being released. This decision took into account Nchouki's prospects of rehabilitation, which the Court deemed to be modest or guarded.

The final orders of the Court of Criminal Appeal included the substitution of a recognizance release order for the original custodial sentence, with Nchouki to serve three months in custody before being released. This outcome reflects a nuanced approach to sentencing, balancing the need for punishment with the potential for rehabilitation, while also ensuring that the sentence is proportionate to the offence.

Orders

Orders of the court

See [45]

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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