R v Sharrouf

Case [2023] NSWCCA 137


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Sharrouf [2023] NSWCCA 137
Hearing dates: 22 February 2023
Date of orders: 16 June 2023
Decision date: 16 June 2023
Before: 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

Legislation Cited:

Crimes Act 1900 (NSW) ss 33B, 37, 59, 61, 61I, 61J, 61L

Crimes and Courts Legislation Amendment Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 4A,10A

Criminal Appeal Act 1912 (NSW) s 5D

Cases Cited:

Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33

Baines v R [2016] NSWCCA 132

BP v R [2010] NSWCCA 159

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cherry v R [2017] NSWCCA 150

CMB v Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9; 89 AJLR 407; 243 A Crim R 282

Cowling v R [2015] NSWCCA 213

DS v R; DM v R 109 (2022) NSWLR 82; [2022] NSWCCA 156

DH v R [2022] NSWCCA 200

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 214 A Crim R 152

House v The King (1936) 55 CLR 499

IE v R (2008) 183 A Crim R 150

JG v R [2023] NSWCCA 33

JT v R [2011] NSWCCA 128

Kennedy v R [2022] NSWCCA 215

Kerr v R [2016] NSWCCA 218

Kochai v R [2023] NSWCCA 116

Lee v R [2023] NSWCCA 70

Magro v R [2020] NSWCCA 25

Mill v The Queen (1988) 166 CLR 59

MJ v R [2010] NSWCCA 52

Mulato v R [2006] NSWCCA 282

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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.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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