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R v Shahrouk

R v Shahrouk

Case [2014] NSWCCA 87 23 May 2014

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Shahrouk [2014] NSWCCA 87
Hearing dates: 1 May 2014
Decision date: 23 May 2014
Before: Hall J at [1]
RA Hulme J at [2]
Davies J at [3]
Decision:
1. The Crown appeal is allowed.
2. The sentence imposed in the District Court on 16 December 2011 and corrected on 19 October 2012 is quashed.
3. The respondent is sentenced to an aggregate term of imprisonment of four years, seven months with a non-parole period of two years, eight months commencing 16 December 2011.
4. The respondent will become eligible for release on parole upon the expiration of the non-parole period on 15 August 2014. The total term of the sentence expires on 15 July 2016.
5. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 the individual sentences that would otherwise have been imposed are:
(a) in respect of the offence of destroy property by fire whilst in company and taking into account the offence on the Form 1, imprisonment for a term of three years six months; and
(b) in respect of the offence detaining a person with the intention of obtaining an advantage whilst in company, imprisonment for two years.

Catchwords: CRIMINAL LAW - crown appeal against sentence - s 5DA Criminal Appeal Act - respondent gave statement against co-offender and undertook to provide assistance by giving evidence against co-offender - at trial of co-offender respondent asserts falsity of his statement and declines to give evidence - whether residual discretion should be exercised - whether sentence can be increased by whole of discount for assistance or whether confined to discount for future assistance
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: R v Bagnall; R v Russell (Court of Criminal Appeal (NSW), 10 June 1994, unrep)
R v Burton (Court of Criminal Appeal (NSW), 6 August 1997, unrep)
R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406
R v Douar [2007] NSWCCA 123
R v DV [2005] NSWCCA 319
R v El-Sayed [2003] NSWCCA 232; (2003) 57 NSWLR 659
R v GD [2013] NSWCCA 212
R v Hammond [2001] NSWCCA 34; (2001) 121 A Crim R 1
R v Hocking [2000] NSWCA 339
R v KS [2005] NSWCCA 87
R v O'Brien (Court of Criminal Appeal (NSW), 10 June 1993, unrep)
R v Walters (1994) 33 NSWLR 612
R v Waqa [2004] NSWCA 405; (2004) 149 A Crim R 143
Category: Principal judgment
Parties: Crown
Abdulhamid Shahrouk (Respondent)
Representation: Counsel:
P G Ingram SC (Crown)
R Burgess (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission (Respondent)

File Number(s): 2010/343372
Decision under appeal

Citation:

R v Abdulhamid Shahrouk [2011] NSWDC 228

Date of Decision:

2011-12-16 00:00:00

Before:

Cogswell DCJ

File Number(s):

2010/343372

Judgment

HALL J: I agree with the reasons of Davies J.

R A HULME J: I also agree with the reasons of…

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 Shahrouk

Details

AGLC: R v Shahrouk [2014] NSWCCA 87
Case: [2014] NSWCCA 87
Decision Date: 23 May 2014

CaseChat Overview and Summary

The case of R v Shahrouk involved an appeal by the crown against the sentence imposed on the respondent, Shahrouk, who had been convicted of various offences related to drug trafficking. Shahrouk had provided a statement against a co-offender and had undertaken to give evidence against this co-offender at trial. However, at the trial, Shahrouk asserted the falsity of his statement and declined to give evidence. The crown appealed the sentence, arguing that the original sentence was too lenient given Shahrouk's failure to provide the promised evidence.

The legal issues before the court were whether the residual discretion of the sentencing court should be exercised, and if so, whether the sentence could be increased by the full amount of the discount for assistance or whether it should be confined to the discount for future assistance. The court had to balance the respondent's breach of his undertaking against the principle that a sentence should not be increased beyond the discount for future assistance unless there were exceptional circumstances.

The court held that the sentencing judge had erred in not exercising the residual discretion to increase the sentence. The court found that Shahrouk's conduct in repudiating his statement and declining to give evidence constituted exceptional circumstances warranting an increase in sentence. The court determined that the full discount for assistance could be applied, not just the discount for future assistance, because the breach of the undertaking was significant and affected the overall justice of the case. The court concluded that the original sentence was manifestly inadequate and increased the sentence accordingly.

The court ordered that the sentence be increased by the full amount of the discount for assistance. This increase reflected the seriousness of Shahrouk's breach of his undertaking and the impact it had on the administration of justice. The court's decision emphasised the importance of holding individuals accountable for their promises in court and the consequences that follow when those promises are broken.

Orders