R v Youkhana - [2015] NSWDC 314

District Court

New South Wales

Medium Neutral Citation: R v Youkhana [2015] NSWDC 314
Hearing dates: 11 December 2015
Date of orders: 11 December 2015
Decision date: 11 December 2015
Jurisdiction: Criminal
Before: Knox SC DCJ
Decision:
Term of imprisonment of 12 years
Non-parole period of 7 years and 6 months

Catchwords: CRIMINAL LAW - sentence - cause grievous bodily harm with intent - victim was child of the offender - vulnerability of victim - offender in position of trust - prior conduct - matters on s 166 certificate - breach of good behaviour bond
Legislation Cited: Crimes Act 1900 (NSW), s 33
Cases Cited: Cheung v R (2001) 209 CLR 1; [2001] HCA 67
Heron v R [2006] NSWCCA 215
Josefski v R [2010] NSWCCA 41
R v Hill [2014] NSWSC 1010
R v JCW [2000] NSWCCA 209
R v Lolesio [2014] NSWCCA 219
R v Luu (unrep, 12 March 1998, NSWCCA)
R v Mitchell, R v Gallagher [2007] NSWCCA 296
R v Olbrich [1999] HCA 54
R v Pitcher (unrep, 19 February 1996, NSWCCA)
R v Ross Martin (unrep, 6 May 2011, NSWDC)
R v Williams (2004) 148 A Crim R 325
R v Zhang [2004] NSWCCA 358
Category: Sentence
Parties: Director of Public Prosecutions (NSW)
Linda Youkhana
Representation:
Counsel:
Ms H Roberts (Crown)
Ms J Layani Ellis (Offender)
Solicitors:
Office of the DPP
Jack Rigg Solicitors (Offender)

File Number(s): 2013/229779

Sentence

The offender, Linda Youkhana, was found guilty by a jury following a trial on a charge of intentionally causing grievous bodily harm.

Between 30 March 2013 and 2 April 2013 at Smithfield in the State of New South Wales caused grievous bodily harm to ‘A’ with intent to cause grievous bodily harm.

The charge was brought pursuant to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years imprisonment. A standard non parole period of 7 years has been established for that offence.

Offender’s background

The offender, Linda Youkhana ('Ms Youkhana')is the mother of the victim, ‘A’. She moved to Australia from Iraq in 2004, at the age of 19.
The offender has two other children, JY, now aged 9,and AY, now aged 5. At the time of the alleged incident, the victim, A, was aged two.
The offender is 30 years of age (born on 15 September 1985).
At the time of the offence, the offender was married to Benyamin Youkhana. He is not the biological father of A or of AY. That was not known to him at the time of the incident. Her marriage to Benyamin Youkhana took place in Australia when she, the offender, was aged 18. It was an arranged marriage. The Pre-Sentence Report simply states that her relationship with Benyamin ceased in 2013 as a result of infidelity and that they subsequently divorced in 2015.
Also living in the home at the relevant time was the maternal grandmother (Faha Suleiman) of the child and mother 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 Youkhana

Details

AGLC: R v Youkhana [2015] NSWDC 314
Case: [2015] NSWDC 314
Decision Date: 11 December 2015

CaseChat Overview and Summary

The case of R v Youkhana involved the defendant, Youkhana, who was charged with causing grievous bodily harm with intent. The victim was a child under the care of Youkhana, highlighting the inherent vulnerability and trust placed in him. The court was required to consider the severity of the offence, the relationship between the offender and the victim, and prior conduct which was brought to the court’s attention. The sentencing also took into account a breach of a good behaviour bond. The case was heard in the Supreme Court of Victoria, which had to balance the need for deterrence and protection of the community with the personal circumstances of the offender.

The court faced the challenge of determining an appropriate sentence, considering the aggravating factors such as the relationship between the offender and the victim, the breach of trust, and the prior conduct. The legal issues included the extent to which the court could consider the personal circumstances of the offender, the principles of sentencing for offences of this nature, and the impact of the breach of a good behaviour bond on the sentencing decision. The court also had to evaluate the relevance of the matters listed on the s 166 certificate, which included prior convictions and the offender's history.

In delivering the sentence, the court weighed the gravity of the offence and the breach of trust involved. The court found that the offender's actions demonstrated a significant level of premeditation and a severe breach of the trust placed in him as a caregiver. The court also considered the breach of the good behaviour bond, which indicated a disregard for previous court orders. The court concluded that a custodial sentence was necessary to adequately address the seriousness of the crime, provide protection to the community, and deter future similar offences. The sentence of 12 years with a non-parole period of 7 years and 6 months was imposed, reflecting the need for both punishment and deterrence.

Orders

Orders of the court

Term of imprisonment of 12 years

Non-parole period of 7 years and 6 months

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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Medium Neutral Citation:	R v Youkhana [2015] NSWDC 314
Hearing dates:	11 December 2015
Date of orders:	11 December 2015
Decision date:	11 December 2015
Jurisdiction:	Criminal
Before:	Knox SC DCJ
Decision:	Term of imprisonment of 12 years Non-parole period of 7 years and 6 months
Catchwords:	CRIMINAL LAW - sentence - cause grievous bodily harm with intent - victim was child of the offender - vulnerability of victim - offender in position of trust - prior conduct - matters on s 166 certificate - breach of good behaviour bond
Legislation Cited:	Crimes Act 1900 (NSW), s 33
Cases Cited:	Cheung v R (2001) 209 CLR 1; [2001] HCA 67 Heron v R [2006] NSWCCA 215 Josefski v R [2010] NSWCCA 41 R v Hill [2014] NSWSC 1010 R v JCW [2000] NSWCCA 209 R v Lolesio [2014] NSWCCA 219 R v Luu (unrep, 12 March 1998, NSWCCA) R v Mitchell, R v Gallagher [2007] NSWCCA 296 R v Olbrich [1999] HCA 54 R v Pitcher (unrep, 19 February 1996, NSWCCA) R v Ross Martin (unrep, 6 May 2011, NSWDC) R v Williams (2004) 148 A Crim R 325 R v Zhang [2004] NSWCCA 358
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Linda Youkhana
Representation:	Counsel: Ms H Roberts (Crown) Ms J Layani Ellis (Offender) Solicitors: Office of the DPP Jack Rigg Solicitors (Offender)
File Number(s):	2013/229779