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Younan v R

Younan v R

Case [2016] NSWCCA 248 9 November 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Younan v R [2016] NSWCCA 248
Hearing dates: 6 May 2016
Decision date: 09 November 2016
Before: Beazley P at [1];
R A Hulme J at [184];
R S Hulme AJ at [185]
Decision:
(1)   Appeal against conviction dismissed;

(2)   Leave to appeal against sentence granted;
(3)   Appeal against sentence dismissed.
Catchwords: CRIMINAL LAW – appeal against conviction – where trial judge refused to discharge jury – where witness alleged to have made prejudicial statements – whether any prejudice could be remedied by directions
CRIMINAL LAW – appeal against conviction – substantial miscarriage of justice – whether conduct of Crown case led to a miscarriage of justice – whether trial counsel had provided incompetent representation – whether the appellant was pressured into signing a statement of agreed facts
CRIMINAL LAW – appeal against sentence - whether sentence manifestly excessive – whether trial judge erred in considering the appellant’s age – whether the trial judge erred in making a finding of special circumstances – whether conduct of trial led errors in the sentencing process – re-exercise of sentencing discretion on appeal
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Judiciary Act 1903 (Cth)
Cases Cited: Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Flaherty v R; R v Flaherty [2016] NSWCCA 188
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
Loury v R [2010] NSWCCA 158
Miller v R [2015] NSWCCA 206
MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
Qing An v R [2007] NSWCCA 53
R v Ahola (No 6) [2013] NSWSC 703
R v Bartle [2003] NSWCCA 329
R v Birks (1990) 19 NSWLR 677
R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37
R v Ly [2014] NSWCCA 78
R v Marsland (NSWCCA, 17 July 1991, unreported)
R v Simpson (2001) 53 NSWLR 702; [2001] NSWCCA 534
Santo v R [2009] NSWCCA 269
Tsiakas v R [2015] NSWCCA 187
Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37
Category: Principal judgment
Parties: Raymond Younan (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)
Representation:
Counsel:
D Provera (Appellant)
K Ginges (Respondent)
Solicitors:
Heffernan Legal (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2012/55503
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

1 May 2015

Before:

Judge Knox SC

File Number(s):

2012/55503

Headnote

[This headnote is not to be read as…

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 Younan v R

Details

AGLC: Younan v R [2016] NSWCCA 248
Case: [2016] NSWCCA 248
Decision Date: 09 November 2016

CaseChat Overview and Summary

In the case of Younan v R, the appellant, Younan, appealed against both his conviction and the severity of his sentence. The dispute centred on the trial judge's refusal to discharge the jury and the alleged prejudicial statements made by a witness. The court had to decide whether any prejudice could be remedied by directions to the jury and if the conduct of the Crown case led to a miscarriage of justice. Additionally, the court examined whether the appellant's trial counsel provided incompetent representation and if the appellant was pressured into signing a statement of agreed facts.

The court evaluated the trial judge's refusal to discharge the jury due to alleged prejudicial statements made by a witness. The court considered whether the jury's potential exposure to these statements was so prejudicial that it could not be remedied by directions. Furthermore, the court examined the conduct of the Crown case to determine if it led to a miscarriage of justice. This included assessing whether trial counsel provided competent representation and if the appellant was coerced into signing a statement of agreed facts. The court also reviewed the severity of the sentence, considering whether it was manifestly excessive and if the trial judge erred in considering the appellant's age or in making a finding of special circumstances. The court further examined if the conduct of the trial led to errors in the sentencing process.

The court found that the trial judge's refusal to discharge the jury was justified, as any prejudice caused by the witness's statements could be remedied by appropriate directions. The court concluded that the conduct of the Crown case did not lead to a miscarriage of justice and that the appellant's trial counsel provided competent representation. The court also found that the appellant was not pressured into signing the statement of agreed facts. However, the court determined that the sentence was manifestly excessive and that the trial judge erred in making a finding of special circumstances. The court re-exercised its sentencing discretion on appeal, reducing the severity of the sentence.

The final orders included a reduction in the severity of the appellant's sentence, reflecting the court's determination that the original sentence was manifestly excessive. The court's decision underscored the importance of ensuring that legal proceedings are fair and that sentences are proportionate to the crimes committed.

Orders