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Youkhana v R

Youkhana v R

Case [2013] NSWCCA 85 26 April 2013

Admissibility of Evidence

Sentencing

Parity Principles

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Natasha Youkhana v R [2013] NSWCCA 85
Hearing dates: 15 March 2013
Decision date: 26 April 2013
Before: Hoeben CJ at CL - [1]
Slattery J - [2]
Bellew J - [3]
Decision:
1.Leave to appeal granted.
2.Appeal dismissed.

Catchwords:
CRIMINAL LAW - EVIDENCE - where applicant pleaded guilty to dealing with proceeds of crime and related offences - where facts asserted by the Crown on sentence were disputed - where Crown sought to prove disputed facts by relying upon representations of an unavailable co-offender pursuant to s. 65(2)(b) and s. 65(2)(d) of the Evidence Act - where sentencing judge admitted the representations - whether sentencing judge erred in concluding that the representations were made in circumstances that made it unlikely that they were a fabrication, or that made it likely that they were reliable - whether representations should have been excluded - whether open to the sentencing judge to conclude that he was satisfied beyond reasonable doubt of the disputed facts - no error in the decision of the sentencing judge to admit the representations - no error in the sentencing judge's conclusion that he was satisfied, o n the basis of the representations, of the disputed facts beyond reasonable doubt
SENTENCE - parity principles - whether applicant had a justifiable sense of grievance in light of sentence imposed upon a co-offender for a similar offence - where sentencing judge properly considered principles of totality - where the applicant charged with offences over and above those with which the co-offender had been charged - where the overall criminality of the applicant was substantially in excess of that of the co-offender - no error demonstrated - no justifiable sense of grievance made out - appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Evidence Act 1995
Financial Transaction Reports Act 1988
New South Wales Crime Commission Act 1985
Cases Cited: Harris v R [2005] NSWCCA 432
Hopley v R [2008] NSWCCA 105
House v The King (1936) 55 CLR 499
R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 at 616
R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61
R v Tanya Youkhana [2011] NSWDC 63
R v Natasha Youkhana [2011] NSWDC 204
Category: Principal judgment
Parties: Natasha Youkhana - Applicant
Regina - Respondent
Representation: Mr W C Terracini SC and Mr M P Tanevski (Applicant)
Mr J Pickering SC (Respondent)
Bannisters Lawyers - (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2007/16952 2007/17249
Publication restriction: Nil
Decision under appeal

Citation:

[2011] NSWDC 204

Date of Decision:

2011-12-20 00:00:00

Before:

His Honour Judge Haesler SC

Judgment

HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.

SLATTERY J: I agree with Bellew J.

BELLEW J: In 2006 and 2007 investigations undertaken by a joint taskforce known as "Operation Schoale" resulted in the arrest of a number…

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 Youkhana v R

Details

AGLC: Youkhana v R [2013] NSWCCA 85
Case: [2013] NSWCCA 85
Decision Date: 26 April 2013

CaseChat Overview and Summary

The case of Youkhana v R involved the applicant, who pleaded guilty to dealing with the proceeds of crime and related offences. The dispute centered on the facts asserted by the Crown at the sentencing phase, which the applicant contested. The Crown sought to prove these disputed facts by relying on the representations of an unavailable co-offender under sections 65(2)(b) and 65(2)(d) of the Evidence Act. The sentencing judge admitted these representations into evidence, leading to the applicant's appeal on the grounds that the judge erred in concluding the representations were reliable.

The legal issues before the court involved whether the sentencing judge erred in admitting the representations of the co-offender and whether the judge could validly conclude that he was satisfied beyond reasonable doubt of the disputed facts based on these representations. The court examined the criteria for admissibility under the Evidence Act and the standard of proof required for the sentencing judge's satisfaction.

The court found no error in the sentencing judge's decision to admit the representations, as the circumstances surrounding their making rendered fabrication unlikely and reliability likely. The court further held that the sentencing judge was entitled to conclude that he was satisfied beyond reasonable doubt of the disputed facts based on the representations. The court also reviewed the principles of parity in sentencing and found that the sentencing judge had properly considered these principles, taking into account the overall criminality of the applicant compared to that of the co-offender. The appeal was dismissed as no error was demonstrated in the sentencing process.

No justifiable sense of grievance was established, and the principles of totality were correctly applied. The overall criminality of the applicant was substantially in excess of that of the co-offender, justifying the disparity in sentences. The court's decision affirmed the correctness of the sentencing judge's approach and the final orders of the appeal were to dismiss the appeal.

Orders