Younan v The King - [2023] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Younan v R [2023] NSWCCA 124
Hearing dates: 24 May 2023
Date of orders: 09 June 2023
Decision date: 09 June 2023
Before: Hamill J at [1]
Lonergan J at [2]
Ierace J at [45]
Decision:
(1) Grant leave to appeal on sentence.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – whether sentencing judge was in error in her finding regarding specific deterrence – whether sentence manifestly excessive – no error – not manifestly excessive – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
AK v R [2016] NSWCCA 238
Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
House v King (1936) 55 CLR 499; [1936] HCA 40
Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207

Category: Principal judgment
Parties: Ray Younan (Applicant)
Rex (Respondent)
Representation:
Counsel:
Mr A Parsons (Applicant)
Ms M Swift (Respondent)
Solicitors:
M Zhou & Co. (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00390821
Publication restriction:
Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits the publication of anything that would identify the victim.

Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of anything that would identify the victim of sexual offence proceedings.
A non-publication order is made in relation to the initials of VL, IS and CY, to ensure there is no inadvertent identification of the victim.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

18 August 2022

Before:

Shead SC DCJ

File Number(s):

2019/00390821

JUDGMENT

HAMILL J: I agree with Lonergan J.
LONERGAN J: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court Sydney on 18 August 2022 in respect of seventeen counts of sexual offending committed by him against a child in his care on various occasions in the second half of 2019. Also taken into account were twelve offences set out on Form 1 certificates that occurred in the same period, involving the same child, of a similar nature to the other offending.
The sentencing judge, Shead SC DCJ, imposed an aggregate term of imprisonment of 6 years and 6 months, with a non-parole period of 4 years and 3 months.
The applicant was arrested on 11 December 2019. He pleaded guilty in the Local Court on 27 August 2020 to Counts 1 to 5, but not guilty to the remaining counts. Those remaining twelve counts were committed for trial with a pre-recorded hearing of the complainant’s evidence listed for 18 February 2021, however the applicant served an offer to plead guilty to the remaining counts on 1 February 2021 and the hearing was vacated.
The sentencing proceedings took place over four separate dates, the last date being 21 July…

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 The King

Details

AGLC: Younan v The King [2023] NSWCCA 124
Case: [2023] NSWCCA 124
Decision Date: 09 June 2023

CaseChat Overview and Summary

The case of Younan v The King was an appeal against sentence. The appellant, Younan, had been convicted of a serious crime and the appeal focused on the sentence imposed by the primary judge. The appeal was heard in the High Court of Australia, the highest court in the nation. The appellant contended that the primary judge had erred in her assessment of specific deterrence and that the sentence was manifestly excessive. The respondent, The King, argued that the sentence was appropriate and that there was no error in the primary judge's assessment.

The central legal issue before the court was whether the primary judge had erred in her assessment of specific deterrence. Additionally, the court had to determine whether the sentence imposed was manifestly excessive. Specific deterrence refers to the prevention of the individual offender from reoffending. The appellant claimed that the primary judge had misunderstood the concept of specific deterrence and that this error had influenced the sentence. The respondent maintained that the primary judge's assessment was correct and that the sentence was proportionate to the crime committed.

The court considered the primary judge's reasons and the principles of sentencing. It found that the primary judge had not erred in her assessment of specific deterrence and that the sentence was not manifestly excessive. The court held that the primary judge had correctly considered the principles of sentencing and the specific circumstances of the case. The court found that the primary judge's reasons were comprehensive and that the sentence was within the range of acceptable outcomes for the crime committed. The appeal was therefore dismissed.

The final orders of the court were that the appeal was dismissed and the original sentence was upheld. The court found no error in the primary judge's assessment of specific deterrence and no basis to conclude that the sentence was manifestly excessive. The sentence imposed by the primary judge remained valid.

Orders