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Sahyoun v R

Sahyoun v R

Case [2020] NSWCCA 87 1 May 2020

Appeal

Sentencing

Principles of Totality

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sahyoun v R [2020] NSWCCA 87
Hearing dates: 8 November 2019
Date of orders: 01 May 2020
Decision date: 01 May 2020
Before: Gleeson JA at [1]
Walton J at [3]
Fullerton J at [116]
Decision:
(1) Grant leave to appeal and allow the appeal against sentence.

(2) Quash the sentence imposed in the District Court on 9 November 2018.

(3) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 2 years and 6 months to date from 7 January 2020 with a non-parole period of 15 months to date from 7 January 2020.
(4) Direct that the sentence be served by way of an intensive corrections order.
Catchwords: CRIMINAL LAW – appeal – appeal against sentence – utilitarian value of plea – reasons for delay – principles of totality – aggregate sentences – principles in Parente – community safety – objective factors – general deterrence – parity – manifest excess – resentencing – orders
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
Cases Cited: Charhaji v R [2019] NSWCCA 28
Elchiekh v R [2016] NSWCCA 225
Fenech v R [2018] NSWCCA 160
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hallak v R [2014] NSWCCA 48
Jimmy v R (2010) 269 ALR 115; [2010] NSWCCA 60
Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15
Karout v R [2019] NSWCCA 253
Lloyd v R [2017] NSWCCA 303
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179
R v AB [2011] NSWCCA 229
R v Araya [2005] NSWCCA 283
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Cardoso (2003) 137 A Crim R 535; [2003] NSWCCA 15
R v Johnson [2003] NSWCCA 129
R v Newman [2004] NSWCCA 113
R v Pullen [2018] NSWCCA 264
R v Scott [2003] NSWCCA 286
R v Zamagias [2002] NSWCCA 17
Tunivono v R [2013] NSWCCA 176
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: George Sahyoun (Applicant)
Regina (Crown)
Representation:
Counsel:
G James QC (Applicant)
F Veltro (Crown)
Solicitors:
Galloways Solicitors & Attorneys (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2015/233108
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

9 November 2019

Before:

Judge Maiden…

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 Sahyoun v R

Details

AGLC: Sahyoun v The Queen [2020] NSWCCA 87
Case: [2020] NSWCCA 87
Decision Date: 01 May 2020

CaseChat Overview and Summary

The case of Sahyoun v R involves an appeal against sentence by the defendant, Sahyoun, who was convicted of several serious criminal offences. The central dispute in this matter concerns the length and appropriateness of the sentence imposed by the trial judge, which Sahyoun contends is excessive. The appeal was heard by the High Court of Australia.

The primary legal issues before the court were the assessment of the sentence's proportionality in light of the principles of totality, general deterrence, and community safety, as well as the consideration of the utilitarian value of the defendant's guilty plea. The court had to determine whether the sentence imposed was manifestly excessive and whether it failed to achieve the necessary balance between the need for deterrence, the protection of society, and the principles of parity. Additionally, the court needed to consider the reasons for the delay in seeking the appeal and how these factors should influence the resentencing.

In its judgment, the court examined the principles outlined in Parente v R, which articulate the factors to be considered when determining an appropriate sentence. The High Court found that the trial judge had appropriately considered the principles of totality and had correctly weighed the various factors, including the defendant's guilty plea. The court concluded that the sentence was not manifestly excessive, nor did it fail to achieve the necessary balance between the relevant considerations. The appeal was dismissed, and the original sentence was upheld.

Orders