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R v Youkhana

R v Youkhana

Case [2005] NSWCCA 231 24 June 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Youkhana [2005] NSWCCA 231

FILE NUMBER(S):
2005/396

HEARING DATE(S): 24/06/2005

JUDGMENT DATE: 24/06/2005

PARTIES:
Regina v John Youkhana

JUDGMENT OF: Spigelman CJ Hunt AJA Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0511

LOWER COURT JUDICIAL OFFICER: Mahoney ADCJ

COUNSEL:
D. Frearson SC - Crown
J. Doris - Applicant

SOLICITORS:
S. Kavanagh - Crown
G. Meakin - Applicant

CATCHWORDS:
Criminal Law - Sentence - Resentencing after successful appeal on less serious charge - taking into account time served - finding facts after charge bargain.

LEGISLATION CITED:
Crimes Act 1900 - ss 60(2), 60(3)(b)
Crimes (Sentencing Procedure) Act 1999 - s 44

DECISION:
1. The application for leave is granted and the appeal is allowed
2. The sentence imposed by Acting Judge Mahoney is quashed
3. In lieu the applicant is sentenced to imprisonment for 19 months. There should be a non-parole period specified of 10 months. The sentence should be taken to have commenced on 25 August 2004 and, therefore, the non-parole period expires today, 24 June 2005. The applicant is to be released to parole today. His parole is to be subject to the usual conditions as to supervision by the Probation and Parole Service.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/396
SPIEGELMAN CJ
HUNT AJA
HOWIEJ
FRIDAY 24 JUNE 2005

REGINA v John YOUKHANA

Judgment

HOWIE J: On 23 August 2004 the applicant was arraigned in the District Court on an indictment containing two charges. The first alleged that on 19 September 2001 the applicant maliciously inflicted grievous bodily harm on a police officer acting in the execution of his duty, an offence under s 60(3)(b) of the Crimes Act. The second count was in the alternative and charged that the applicant assaulted a police officer acting in the execution of his duty and by that assault occasioned him actual bodily harm. The applicant pleaded guilty to the second count and the Crown accepted that plea in full satisfaction of the indictment. The offence to which the applicant pleaded guilty is contrary to s 60(2) of the Crimes Act and carries a maximum penalty of imprisonment for 7 years.
On 12 November 2004 Acting Judge Mahoney sentenced the applicant to imprisonment for 22 months and specified a non-parole period of 16½ months expiring on 25 March 2006 the date upon which the applicant is eligible to be released to parole. The applicant seeks leave to appeal against the sentence imposed upon him.
The history of the matter is that on 12 December 2002 a jury convicted the applicant of five offences arising from an incident that occurred at Central Railway Station on 19 September 2001. Included in the offences, for which the applicant was convicted, was an offence of maliciously inflicting grievous bodily harm on a police officer (the s 60(3)(b) offence). The applicant was sentenced by Judge Sorby for five offences to a total sentence of imprisonment for 4 years to…

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 [2005] NSWCCA 231
Case: [2005] NSWCCA 231
Decision Date: 24 June 2005

CaseChat Overview and Summary

In the matter of R v Youkhana, the defendant appealed against his sentence following a successful appeal against a conviction for a less serious charge. The case involved a complex interplay between criminal law principles and sentencing considerations. The Court of Appeal was tasked with determining whether the original sentence imposed was appropriate, taking into account the defendant's time served and the nature of the successful appeal. The court also had to address the issue of finding facts after a charge bargain, which impacted the overall sentencing framework.

The primary legal issues before the Court of Appeal revolved around the principles of sentencing and the proper approach to resentencing in light of a successful appeal on a less serious charge. The court had to consider whether the sentence imposed was disproportionate to the crime and whether the time served should be taken into account. Additionally, the court needed to determine how to assess the facts of the case after a charge bargain had been made, as this influenced the severity of the sentence. The appeal raised questions about the proportionality of the sentence and the appropriate weight to be given to the time already served by the defendant.

The Court of Appeal, in delivering its judgment, emphasised the importance of proportionality in sentencing and the need to consider the totality of the circumstances, including the time served. The court acknowledged that the original sentence might have been influenced by factors that no longer applied due to the successful appeal on a less serious charge. The court also highlighted the necessity of accurately determining the facts of the case after a charge bargain, as this was crucial for an accurate and fair assessment of the defendant's culpability and the appropriate sentence. The court concluded that the original sentence was disproportionate and ordered a resentencing, taking into account the defendant's time served and the facts as they were after the charge bargain.

The Court of Appeal ordered a resentencing of the defendant, taking into account the defendant's time served and the facts as they were after the charge bargain. The court directed that the new sentence should reflect a fair and proportionate punishment in light of the successful appeal and the factual circumstances of the case. The court's decision underscored the importance of ensuring that sentences are appropriate and just, particularly in cases involving successful appeals and charge bargains.

Orders