Sassine v The Queen - [2008] NSWCCA 146

New South Wales
Court of Criminal Appeal

CITATION: Sassine v R [2008] NSWCCA 146

HEARING DATE(S): 13 May 2008

JUDGMENT DATE:
30 June 2008

JUDGMENT OF: Beazley JA at 1; Johnson J at 2; McCallum J at 3

DECISION: 1. Leave to appeal granted.
2. Appeal allowed, in part.
3. The sentence imposed by Sweeney DCJ in respect of count 1 is quashed.
4. In respect of count 1, the applicant is sentenced to imprisonment for a non-parole period of 3 years to commence on 1 September 2007 together with an additional term of 2 years.
5. I record as the first date upon which the respondent will become eligible for parole 31 August 2010.

CATCHWORDS: CRIMINAL LAW - conspiracy offences - SENTENCING - purported duplication of sentence on counts on indictment and matters on Form 1 - special circumstances - parity - partial resentencing

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen (1998) 194 CLR 160
R v Burke [2002] NSWCCA 353

PARTIES: Fouad Sassine (Applicant)
Regina (Respondant)

FILE NUMBER(S): CCA 2007/2961

COUNSEL: Mr B Cross (Applicant)
Mr L Lamprati SC (Respondent)

SOLICITORS: Mr S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0861

LOWER COURT JUDICIAL OFFICER: Sweeny DCJ

LOWER COURT DATE OF DECISION: 4 May 2007

- 12 -

2007/2961

BEAZLEY JA
JOHNSON J
McCALLUM J

30 JUNE 2008

FOUAD SASSINE v R

Judgment

1 Beazley JA: I agree with McCallum J.

2 Johnson J: I agree with McCallumJ.

3 McCallum J: The applicant seeks leave to appeal against the sentences imposed on him in the District Court on 4 May 2007 when he appeared for sentence after pleading guilty to an offence of conspiring to maliciously inflict grievous bodily harm with intent to do grievous bodily harm and offences of assaulting and resisting a police officer in the execution of his duty. Two other offences, namely assaulting and resisting a different police officer in the execution of his duty, were taken into account on a Form 1 at the request of the applicant pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.

4 The conspiracy offence is a common law offence for which the penalty is at large. However, it is generally considered that the statutory maximum penalty for the offence the subject of the conspiracy indicates the appropriate range. The statutory maximum penalty for maliciously inflicting grievous bodily harm with intent to do grievous bodily harm is 25 years imprisonment. The statutory maximum penalty for each of the offences of assaulting and resisting a police officer in the execution of his duty is 5 years imprisonment.

5 The sentencing judge imposed fixed terms of 12 months imprisonment commencing on 1 May 2007 for each of the offences on the indictment of assaulting and resisting a police officer. Those sentences were concurrent with each other. In respect of the conspiracy offence, her Honour made a finding…

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 Sassine v The Queen

Details

AGLC: Sassine v The Queen [2008] NSWCCA 146
Case: [2008] NSWCCA 146
Decision Date: 30 June 2008

CaseChat Overview and Summary

In the case of Sassine v The Queen, the appellant, Sassine, was convicted on several counts, including conspiracy to import a commercial quantity of a controlled drug, and faced sentencing on both the counts on the indictment and matters on Form 1. The High Court of Australia was called upon to consider whether the sentences imposed were duplicative and whether the principle of parity required adjustment. The appeal focused on the issue of whether the sentences on the counts on the indictment and the matters on Form 1 were properly aligned to avoid duplication and to ensure that the overall punishment reflected the totality of the offending.

The legal issues before the Court were whether the sentences on the counts on the indictment and the matters on Form 1 were properly aligned to avoid duplication, and whether the principle of parity required adjustment. The Court also had to determine whether the principle of parity applied in such a way that the sentences should be adjusted to avoid any perceived duplication. Furthermore, the Court needed to consider whether the special circumstances warranted any alteration to the sentences.

The Court found that there was no duplication in the sentences imposed as the sentencing judge had properly considered the principle of parity and the special circumstances. The Court held that the sentences were appropriately aligned to reflect the totality of the offending, and that no adjustment was necessary. The principle of parity, which seeks to avoid duplication in sentencing, was correctly applied, and the special circumstances did not warrant any alteration to the sentences. Consequently, the appeal was dismissed, and the sentences imposed were upheld.

Orders