R v Taouk - [2012] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v Taouk [2012] QCA 211

PARTIES:

R
v
TAOUK, John
(applicant)

FILE NO/S:

CA No 17 of 2012
DC No 86 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2012

JUDGES:

Muir and White JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant pleaded guilty to one count of extortion – where complainant was applicant’s uncle – where applicant alleged complainant owed him money in relation to the development of an industrial unit complex – where two men were recruited to demand payment of monies from the complainant – where applicant sentenced to three years imprisonment suspended after one year with an operational period of four years – where applicant had one previous conviction for minor offence – where applicant submits sentencing judge placed too much weight on general deterrence and failed to give sufficient weight to mitigating factors – where applicant submits sentencing judge erred in concluding applicant did not show genuine remorse – whether sentence manifestly excessive

R v Carter[2008] QCA 226, cited
R v Cifuentes [2006] QCA 566, considered
R v Coleman[1995] QCA 549, considered
R v Girardo & Michaelides[2012] QCA 166, considered
R v Shambrook[1997] QCA 356, considered

COUNSEL:

A J Kimmins, with D Walsh, for the applicant
B J Power for the respondent

SOLICITORS:

Rostron Carlyle for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: The applicant pleaded guilty to one count of extortion and was sentenced to three years imprisonment suspended after one year with an operational period of four years.

The applicant was 33 at the time of offending and 36 when sentenced. He had one prior conviction for a relatively minor offence for which he had been sentenced to six months imprisonment with immediate release upon entering into a recognisance to be of good behaviour for one year. He seeks leave to appeal against sentence on grounds on that the sentencing judge erred in placing excessive weight on factors of general deterrence and failed to give sufficient weight to mitigating circumstances. He also appeals on the ground that the sentence was manifestly excessive.

The applicant was the owner and manager of a construction company and a property development company. He had ten full-time employees and many consultants and sub-contractors. The businesses were engaged in five developments at the time of sentencing. The applicant was driven by financial hardship to commit the offence. Other matters relied on by the applicant at first instance and on appeal were: positive character references; his good work history; his support of his child and ex-partner; his contributions to the community; his determination not to cause physical…

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 Taouk

Details

AGLC: R v Taouk [2012] QCA 211
Case: [2012] QCA 211
Decision Date: 17 August 2012

CaseChat Overview and Summary

The case before the court involved an appeal against a sentence handed down to the applicant, Taouk, who had pleaded guilty to extortion. The complainant in this matter was the applicant’s uncle. The dispute arose from an allegation that the complainant owed the applicant money in relation to the development of an industrial unit complex. To enforce this claim, the applicant had recruited two men to demand payment from the complainant. Taouk was ultimately sentenced to three years imprisonment, suspended after one year, with an operational period of four years. The applicant had one prior conviction for a minor offence. The applicant appealed on the basis that the sentencing judge had placed too much emphasis on general deterrence and insufficient weight on mitigating factors, and had wrongly concluded that the applicant had not shown genuine remorse. The central issue before the court was whether the sentence was manifestly excessive.

The court reviewed the sentencing principles and the factors relevant to determining whether a sentence was manifestly excessive. The court considered the principle that general deterrence and specific deterrence are important considerations in sentencing, but they must be balanced against the circumstances of the offender and the nature of the offence. The court also examined the evidence to determine whether the sentencing judge had erred in his assessment of the applicant’s remorse and the weight given to mitigating factors. After careful consideration, the court found that the sentencing judge had appropriately balanced the various factors and had not erred in concluding that the sentence was not manifestly excessive.

The court dismissed the application for leave to appeal against sentence. The court found that the sentence was within the range of penalties that could be considered appropriate for the offence of extortion. The court also found that the sentencing judge had given appropriate weight to both the need for general deterrence and the mitigating factors in the applicant’s circumstances. Furthermore, the court was satisfied with the sentencing judge's assessment of the applicant's remorse. As a result, the court refused the application and upheld the original sentence.

Orders

Orders of the court

Application refused.

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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CITATION:	R v Taouk [2012] QCA 211
PARTIES:	R v TAOUK, John (applicant)
FILE NO/S:	CA No 17 of 2012 DC No 86 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2012
JUDGES:	Muir and White JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant pleaded guilty to one count of extortion – where complainant was applicant’s uncle – where applicant alleged complainant owed him money in relation to the development of an industrial unit complex – where two men were recruited to demand payment of monies from the complainant – where applicant sentenced to three years imprisonment suspended after one year with an operational period of four years – where applicant had one previous conviction for minor offence – where applicant submits sentencing judge placed too much weight on general deterrence and failed to give sufficient weight to mitigating factors – where applicant submits sentencing judge erred in concluding applicant did not show genuine remorse – whether sentence manifestly excessive R v Carter[2008] QCA 226, cited R v Cifuentes [2006] QCA 566, considered R v Coleman[1995] QCA 549, considered R v Girardo & Michaelides[2012] QCA 166, considered R v Shambrook[1997] QCA 356, considered
COUNSEL:	A J Kimmins, with D Walsh, for the applicant B J Power for the respondent
SOLICITORS:	Rostron Carlyle for the applicant Director of Public Prosecutions (Queensland) for the respondent