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 dismissedLegislation Cited: Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Evidence Act 1995
Financial Transaction Reports Act 1988
New South Wales Crime Commission Act 1985Cases 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 204Category: Principal judgment Parties: Natasha Youkhana - Applicant
Regina - RespondentRepresentation: 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…
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- AGLC
- Youkhana v R [2013] NSWCCA 85
- Case
- [2013] NSWCCA 85
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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