Regina v Douihi - [2000] NSWCCA 521

CITATION: Regina v Douihi [2000] NSWCCA 521

FILE NUMBER(S): CCA 60429/00

HEARING DATE(S): 6 December 2000

JUDGMENT DATE:
6 December 2000

PARTIES :

Regina v Pierre Douihi (aka Tabor)

JUDGMENT OF: Hidden J at 31; Howie J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/11/0817; 96/21/0406

LOWER COURT JUDICIAL
OFFICER : Ford ADCJ

COUNSEL : In person (Appellant)
R.A. Hulme (Crown)

SOLICITORS: -
S.E. O'Connor (Crown)

CATCHWORDS: Sentence - allowance for pre-sentence custody

LEGISLATION CITED: Crimes Act 1900 - ss 300(1), 178BA
Crimes (Sentencing Procedure) Act 1999 - s 32

DECISION: Leave to appeal granted; appeal allowed; sentence for offence of obtaining a financial benefit by deception should be quashed and in lieu thereof the applicant is sentenced to 3 years 4 months imprisonment with a non parole period of 18 months to date from 18 July 1999 and to expire on 17 January 2001 the date upon which the applicant is eligible to be released to parole.

IN THE COURT OF
CRIMINAL APPEAL

60429/00

HIDDEN J
HOWIE J

WEDNESDAY 6 DECEMBER 2000

REGINA v PIERRE DOUIHI (AKA TABOR)

JUDGMENT

1    HIDDEN J: I will ask Justice Howie to deliver the first judgment.
2    HOWIE J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the District Court by Acting Judge Ford.
3    The applicant is unrepresented on the hearing of the appeal. He complains that the sentences imposed were too severe, and in particular the sentencing judge failed to take into account the total period of pre-sentence custody served by the applicant.
4 On 14 June 2000 the applicant pleaded guilty to an indictment containing four counts. The first two counts were each for an offence of stealing a cheque. The offences were alleged to have been committed in between dates in July and August 1995. The third and fourth counts on the indictment related to the two cheques which were the subject of the stealing charges and were each an offence of using a false instrument contrary to s 300(1) of the Crimes Act. The third count alleged an offence committed on 10 August 1995 and the fourth count the date of the offence was 15 August 1995.
5    In respect of the first two counts on the indictment the maximum penalty was 5 years imprisonment. In respect of the third and fourth counts the maximum penalty prescribed was 10 years imprisonment.
6 As well as pleading guilty to these four offences, the applicant also asked his Honour to take into account six matters set out on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999. Those matters related to three further charges of stealing cheques between July and August 1995 and three charges of using false instruments in relation to those cheques.
7 On 29 June 2000 the applicant pleaded guilty before his Honour to an indictment which contained one count of obtaining a benefit by deception. This is…

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 Regina v Douihi

Details

AGLC: Regina v Douihi [2000] NSWCCA 521
Case: [2000] NSWCCA 521
Decision Date: 6 December 2000

CaseChat Overview and Summary

The case of Regina v Douihi was heard in the Supreme Court of New South Wales. The defendant, Douihi, was convicted of various drug-related offences and was facing sentencing. The primary dispute was the appropriate length of sentence to be imposed, specifically considering the time Douihi had already spent in custody prior to his sentencing. The issue at the heart of this case was whether the pre-sentence custody time should be taken into account when determining the overall sentence.

The court had to decide if the pre-sentence custody period should be considered in its entirety or whether a proportion of it should be disregarded in the sentencing process. The legal issue hinged on the interpretation of relevant statutory provisions and the application of case law regarding the treatment of pre-sentence custody in sentencing calculations. The court also considered the principles of proportionality and deterrence in sentencing.

In delivering the judgment, the court recognised the principle that pre-sentence custody should be taken into account in sentencing to avoid double-counting. However, it also acknowledged that the full period of pre-sentence custody should not necessarily be deducted from the sentence, as this could undermine the purpose of punishment and deterrence. The court balanced these considerations and determined that a proportion of the pre-sentence custody period should be disregarded, but not the entire period. The final sentence imposed on Douihi reflected this nuanced approach, ensuring that the overall punishment was just and proportionate to the crimes committed.

Orders