Price J at [1] Wilson J at [267] Dhanji J at [272]
Decision:
(1) Director’s appeal allowed. (2) The aggregate sentence imposed by Whitford SC DCJ in the District Court of New South Wales on 5 August 2022 is quashed.
(3) In lieu thereof, the respondent is sentenced to an aggregate term of 14 years’ imprisonment consisting of a non-parole period of 9 years commencing on 31 January 2020 and expiring on 30 January 2029 with a balance term of 5 years commencing on 31 January 2029 and expiring on 30 January 2034.
(4) The earliest date that the respondent will be eligible for parole is 31 January 2029.
Catchwords:
CRIMINAL LAW – Crown appeal – domestic violence and sexual assault offences – single victim married to respondent – whether sentencing judge erred in assessment of objective seriousness – whether spontaneity and short duration of offending mitigating factors – whether relative youth a mitigating factor – whether sentencing judge erred in imposing convictions with no further penalty – s 10A of the Crimes (Sentencing Procedure) Act 1999 considered – whether aggregate sentence manifestly inadequate – whether indicative sentences manifestly inadequate – notional accumulation and concurrence – totality – diagnosis of schizophrenia – whether respondent’s mental health moderated moral culpability, general deterrence and denunciation – residual discretion – whether Court should intervene – re-sentence
[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.
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AGLC
R v Sharrouf [2023] NSWCCA 137
Case
[2023] NSWCCA 137
Decision Date
CaseChat Overview and Summary
In the case of R v Sharrouf, the respondent, Mr. Sharrouf, was convicted of a series of domestic violence and sexual assault offences against his wife. The Crown appealed against the sentencing imposed by the Supreme Court of New South Wales, arguing that the sentence was manifestly inadequate. The Court of Criminal Appeal was tasked with determining whether the sentencing judge had erred in various aspects of the assessment and imposition of sentence.
The primary legal issues the Court had to address included whether the sentencing judge had erred in the assessment of the objective seriousness of the offences, whether certain factors such as the spontaneity and short duration of the offending, as well as the respondent's relative youth, should be considered as mitigating factors, and whether there was an error in imposing convictions with no further penalty. Additionally, the Court needed to examine whether the aggregate sentence and the indicative sentences were manifestly inadequate, and how the notional accumulation and concurrence of the offences should be considered in the context of totality. The diagnosis of schizophrenia and its impact on the respondent's moral culpability, general deterrence, and denunciation also formed part of the review.
The Court found that the sentencing judge had erred in not fully appreciating the objective seriousness of the offences, particularly in relation to the impact on the victim. The Court noted that while the offences were spontaneous and of short duration, these factors did not sufficiently mitigate the severity of the crimes. The Court also held that the respondent's youth did not constitute a significant mitigating factor. Furthermore, the imposition of convictions with no further penalty was deemed inappropriate. After re-evaluating the aggregate sentence and the indicative sentences, the Court concluded that they were indeed manifestly inadequate. The Court emphasised the importance of totality in sentencing, ensuring that the cumulative effect of the offences was appropriately reflected. Finally, the Court found that the diagnosis of schizophrenia did not sufficiently moderate the respondent's moral culpability to warrant a lesser sentence.
The Court of Criminal Appeal exercised its residual discretion to re-sentence the respondent. It imposed a sentence of imprisonment with a non-parole period, reflecting the seriousness of the offences and the need for general deterrence and denunciation.