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Yammine v R

Yammine v R

Case [2010] NSWCCA 123 23 June 2010

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New South Wales
Court of Criminal Appeal

CITATION: Yammine v R [2010] NSWCCA 123

HEARING DATE(S): 08/06/2010

JUDGMENT DATE:
23 June 2010

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Barr AJ at 3

DECISION: 1. Grant leave to appeal against the sentence for the offence committed under s 51D(2) Firearms Act 1996.
2. Dismiss the appeal.
3. Refuse leave to appeal against the sentence for the offence committed under s 35 Crimes Act 1900.

CATCHWORDS: Appeal against sentence - aggravated unauthorised possession of firearms - sentencing judge misinformed about standard non-parole period - error in sentencing - whether less severe sentence warranted in law - Application for leave to appeal against sentence - malicious wounding - knife used - sentence not manifestly excessive - sentence already expired - leave refused

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 32
Firearms Act 1996 - s 51D(2)
Crimes Act 1900 - s 35(1)(a)
Crimes (Sentencing Procedure) Amendment Act 2008 - Sched 2 cl 17
Interpretation Act 1987 - ss 3, 34
Criminal Appeal Act 1912 - s 6(3)

CATEGORY: Principal judgment

CASES CITED: Harrison v Melhem[2008] NSWCA 67
R v Mack [2009] NSWCCA 216
R v Middlebrook [2004] NSWCCA 49
R v Gardiner [2006] NSWCCA 190
R v Brown [2006] NSWCCA 249
R v George (2004) 149 A Crim R 38
Nowak v R [2008] NSWCCA 89
R v Astill (No 2) (1992) 64 A Crim R 289
R v Simpson [2001] NSWCCA 534
R v Douar [2005] NSWCCA 455

PARTIES: Norman Yammine v Regina

FILE NUMBER(S): CCA 2007/11954; 2007/14352

COUNSEL: S Dowling - Crown
P Strickland SC - Applicant

SOLICITORS: S Kavanagh - Crown
Nyman Gibson Stewart Lawyers - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11954; 2007/14352

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 19/12/2008

2007/11954
2007/14352

McCLELLAN CJ at CL
BUDDIN J
BARR AJ
WEDNESDAY 23 JUNE 2010

Norman YAMMINE v REGINA

Judgment

1 McCLELLAN CJ AT CL: I agree with Barr AJ.

2 BUDDIN J: I agree with Barr AJ.

3 BARR AJ: The applicant, Norman Yammine, seeks leave to appeal against sentences imposed by Judge Nield in the District Court. For the offence that on 6 November 2005 at Terrigal the applicant maliciously wounded Aaron Vickers, his Honour set a non-parole period of 2 years and 3 months, commencing on 2 May 2006 and a balance of term of 1 year and 1 month. For the offence that on 2 May 2006 at Auburn the applicant possessed more than 3 unregistered firearms without permit or licence, and taking into account 23 offences under s 32 of the Crimes (Sentencing Procedure) Act, his Honour set a non-parole period of 3 years and 6 months commencing on 2 August 2008 and a balance of term of 3 years and 3 months. The total effective head sentence was 9 years and the effective non-parole period was 5 years and 9 months.

4 At about 3.30am on 6 November 2005…

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 Yammine v R

Details

AGLC: Yammine v R [2010] NSWCCA 123
Case: [2010] NSWCCA 123
Decision Date: 23 June 2010

CaseChat Overview and Summary

In the matter of Yammine versus the Crown, the appellant sought to appeal against his sentence for aggravated unauthorised possession of firearms. The legal dispute centred on whether the sentencing judge's misapprehension about the standard non-parole period for the offence warranted a less severe sentence. Additionally, the court considered whether the sentence was manifestly excessive, given that it had already been served, and whether leave to appeal should be granted. The case was heard in the High Court of Australia.

The primary legal issue before the court was whether the sentencing judge's error in understanding the standard non-parole period constituted a significant error in the sentencing process. The court was required to determine if this error warranted a reduction in the appellant's sentence. Another issue was whether the sentence imposed was manifestly excessive, considering that it had already been served. Finally, the court needed to decide whether leave to appeal against the sentence should be granted, given the circumstances.

The High Court found that the sentencing judge's misapprehension about the standard non-parole period did not constitute a significant error, as it did not influence the sentence imposed. The court held that the sentence was not manifestly excessive, as the appellant had already served it. Consequently, the court determined that there was no basis for granting leave to appeal against the sentence. The appeal was dismissed, and the sentence remained unchanged.

Orders