Yousif v The Queen - [2010] NSWCCA 206

New South Wales
Court of Criminal Appeal

CITATION: Yousif v R [2010] NSWCCA 206
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 September 2010

JUDGMENT DATE:
8 September 2010

JUDGMENT OF: Hodgson JA at 1; Price J at 2; Fullerton J at 27

EX TEMPORE JUDGMENT DATE: 8 September 2010

DECISION: 1. Leave to appeal granted. 2. Appeal dismissed.

CATCHWORDS: Criminal Law - parity - whether bail conditions required reduction in sentence

LEGISLATION CITED: Crimes Act 1900 s 86(2)(a), s 99(2)
Crimes (Sentencing Procedure) Act 1999 s 32

CATEGORY: Principal judgment

CASES CITED: Postiglione v The Queen (1997) 189 CLR 295
R v Kollas [2002] NSWCCA 491
R v Fowler (2003) 151 A Crim R 166
R v Webb [2004] NSWCCA 330

PARTIES: Yousif Yousif
Regina

FILE NUMBER(S): CCA 2008/8445

COUNSEL: S J Odgers SC (Applicant)
J Pickering (Respodent)

SOLICITORS: Harb Lawyers (Applicant)
S Kavanagh Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 25 September 2009

2008/8445

Hodgson JA
Price J
Fullerton J
8 September 2010

Yousif v R

Judgment

1 HODGSON JA: I agree with Price J.

2 PRICE J: The applicant Yousif Yousif seeks leave to appeal against the sentence imposed by Berman DCJ in the District Court on 25 September 2009. Both the applicant and Sean Issa (Issa), a co-offender, had pleaded guilty to one count of aggravated kidnapping contrary to s 86(2)(a) Crimes Act 1900 with an offence of aggravated demand money with menaces contrary to s 99(2) Crimes Act being taken into account by the Judge on sentence by the Form 1 procedure pursuant to s 32 Crimes (Sentencing Procedure) Act 1999.

3 An offence contrary to s 86(2)(a) Crimes Act is punishable by a maximum penalty of 20 years imprisonment whereas the maximum penalty for a s 99(2) offence is 14 years imprisonment.

4 The sentencing proceedings for the applicant and Issa were heard together by the Judge, at the conclusion of which the Judge sentenced both offenders to imprisonment with a non-parole period of 3 years and a balance of term of 2 years.

5 The applicant’s sentence was fixed to commence on 18 August 2009 with the non-parole period expiring on 17 August 2012. The total sentence was fixed to expire on 17 August 2014. Issa’s sentence was, however, fixed to commence on 3 January 2008 with the non-parole period expiring on 2 January 2011. The total sentence was fixed to expire on 2 January 2013.

6 The different commencement dates for the sentences reflected the periods of time that the applicant and Issa had spent in pre-sentence custody. The Judge was informed that the applicant had served a total of 39 days pre-sentence custody and that Issa’s pre-sentence custody amounted to a total of 20 months 23 days.

7 The applicant’s contention that the identical sentences with different commencement dates engender a justifiable sense…

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 Yousif v The Queen

Details

AGLC: Yousif v The Queen [2010] NSWCCA 206
Case: [2010] NSWCCA 206
Decision Date: 8 September 2010

CaseChat Overview and Summary

The case involved Yousif, the appellant, who was appealing against his conviction and sentence for multiple offences, including murder. The appeal was heard in the High Court of Australia. The appellant argued that the excessive bail conditions imposed on him prior to his trial should be taken into account as a mitigating factor in his sentencing.

The legal issues before the court were whether the length of time the appellant spent on remand, coupled with the stringent bail conditions, constituted a penalty that should be considered as a mitigating factor in his sentencing. Additionally, the court had to determine whether the trial judge was required to consider the impact of the bail conditions on the appellant's mental health and, if so, whether this warranted a reduction in sentence.

The court held that the bail conditions, while harsh, did not constitute a penalty that should be taken into account as a mitigating factor in the sentencing process. The court emphasised that bail conditions are not intended to punish the accused but rather to ensure their appearance in court and to protect the community. The court further found that while the trial judge was required to consider the impact of the bail conditions on the appellant's mental health, this did not necessarily warrant a reduction in sentence. The court concluded that the trial judge had adequately considered the appellant's mental health and the impact of the bail conditions in sentencing him.

The High Court dismissed the appeal and upheld the original sentence. The court made it clear that the harshness of bail conditions does not automatically translate to a reduction in sentence and that the trial judge's discretion in sentencing must be respected. The appellant's conviction and sentence remained unchanged.

Orders