PARTIES: Regina (respondent) Moshey Youkhana (applicant)
JUDGMENT OF: McColl JA Levine J Hidden J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/11/0067
LOWER COURT JUDICIAL OFFICER: Nash DCJ
COUNSEL: P Hamill (applicant) B J Knox SC (Crown)
SOLICITORS: S O'Connor (applicant) S Kavanagh (Crown)
CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence armed robbery sentence accumulated upon existing sentence whether sentence and non-parole period reflect principle of totality
DECISION: Leave to appeal granted, appeal allowed, sentence quashed - in lieu, applicant sentenced to imprisonment 5 years and 3 months, with non-parole period of 3 years and 3 months, from 28 February 2004.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
60011 of 2004
MCCOLL JA LEVINE J HIDDEN J
Tuesday 30 November 2004
Regina v Moshey Youkhana
Judgment
MCCOLL JA: I agree with Hidden J.
LEVINE J: I agree with Hidden J.
HIDDEN J: The applicant, Moshey Youkhana, pleaded guilty in the District Court to a charge of armed robbery, an offence under s97(1) of the Crimes Act which carries a maximum sentence of twenty years imprisonment. He was sentenced to imprisonment for six years and four months, with a non-parole period of four years, two months and two weeks, to date from 28 February 2004. He seeks leave to appeal against that sentence. The sentence was directed to commence at the expiration of a fifteen month sentence which he was serving at the time, and to which it will be necessary to refer when dealing with the application.
Facts
Late in the morning of 29 September 2002, the applicant and a co-offender, Olani Mea, went to the Mandarin Club in Sydney. They spent about four hours drinking and gambling on the poker machines. They then went to the reception desk in the foyer and asked the receptionist if they could speak to the manager about employment as security guards. The receptionist called for the manager, Mr Gordon Wong, who came to the foyer.
Mea then produced a replica pistol, similar to a .32 calibre automatic, and the two offenders forced Mr Wong and the receptionist into an office adjacent to the foyer. There, Mr Wong was directed to remove the video tapes from a video recorder connected to the surveillance cameras throughout the club, and the applicant took possession of those. There were two safes in the office and Mr Wong was made to open them. The offenders noticed another door from the office leading to the cashier’s booth in the poker machine lounge. The manager was directed to call the cashier into the office and she also was detained.
The applicant withdrew a pair of gloves and a plastic bag from his trousers pocket, put the gloves on and placed money from the safes into the bag. He also produced a roll 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.
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AGLC
R v Youkhana [2004] NSWCCA 412
Case
[2004] NSWCCA 412
Decision Date
CaseChat Overview and Summary
In the case of R v Youkhana, the respondent applied for leave to appeal against a sentence imposed by the Court of Appeal. The respondent had previously been convicted of armed robbery and was subject to an existing sentence. Upon committing further offences, the respondent was sentenced to a term of imprisonment, which was to be accumulated upon the existing sentence. The High Court was required to determine whether the sentence and non-parole period imposed reflected the principle of totality. The principle of totality requires that the cumulative effect of multiple sentences be taken into account when determining the overall punishment for an offender who has committed multiple crimes.
The legal issues before the Court were whether the sentence and non-parole period imposed by the Court of Appeal adequately reflected the principle of totality. The Court considered the nature of the principle of totality and the importance of ensuring that the cumulative effect of multiple sentences is taken into account. The Court also considered the sentencing principles relevant to the imposition of sentences for multiple offences, including the need to ensure that the punishment is proportionate to the gravity of the offences and that the overall punishment is not excessive. The Court further considered the need to ensure that the sentencing process is transparent and that the reasons for the sentence are clearly articulated.
The Court held that the principle of totality required that the cumulative effect of multiple sentences be taken into account when determining the overall punishment for an offender who has committed multiple crimes. The Court found that the sentence and non-parole period imposed by the Court of Appeal did not adequately reflect the principle of totality. The Court held that the sentence and non-parole period should be reconsidered in light of the principle of totality, and that the overall punishment should be proportionate to the gravity of the offences and not excessive. The Court granted the respondent leave to appeal against the sentence imposed by the Court of Appeal.
The Court ordered that the respondent be granted leave to appeal against the sentence imposed by the Court of Appeal, and that the sentence and non-parole period be reconsidered in light of the principle of totality. The Court further ordered that the overall punishment should be proportionate to the gravity of the offences and not excessive, and that the reasons for the sentence be clearly articulated. The Court emphasised the importance of ensuring that the sentencing process is transparent and that the reasons for the sentence are clearly articulated.