Youssef v The Queen - [2013] NSWCCA 308

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Youssef v R [2013] NSWCCA 308
Hearing dates: 20 November 2013
Decision date: 06 December 2013
Before: Hoeben CJ at CL at [1]
Blanch J at [2]
R A Hulme J at [3]
Decision:
Leave to appeal granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - wounding with intent to cause grievous bodily harm - aggravated kidnapping - sustained assault and restraint of intellectually impaired woman - asserted error in having regard to features of harm caused in kidnapping offence beyond basic requirement of actual bodily harm - asserted error in benefit to victim taken into account when considering utility of guilty plea - asserted error in failing to give weight to mental conditions of offender not related to offence - no error in finding offence more serious because harm significantly beyond basic element - remorse not expressed until after exculpatory police interview and eventual pleas of guilty - benefit to victim not a consideration on that account in any event - remarks relating to mental illness terse but context indicates full consideration - no errors made out
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Benitez [2006] NSWCCA 21; (2006) 160 A Crim R 166
R v Boney [2008] NSWCCA 313
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Chisari [2006] NSWCCA 19
R v Engert (1995) 84 A Crim R 67
R v Halls [2008] NSWCCA 251
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Category: Principal judgment
Parties: Nada Vanja Youssef (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr I McLachlan (Applicant)
Ms S Herbert (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2011/76478
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-10-26 00:00:00

Before:

Neilson DCJ

File Number(s):

2011/76478

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.

BLANCH J: I agree with R A Hulme J.

R A HULME J: Nada Vanja Youssef ("the applicant") seeks leave to appeal against sentences imposed upon her by his Honour Judge Neilson in the District Court at Sydney on 26 October 2012.

The applicant had pleaded guilty to offences of wounding with intent to cause grievous bodily harm (s 33 Crimes Act 1900 (NSW) - maximum penalty imprisonment for 25 years - standard non-parole period 7 years) and specially aggravated kidnapping (s 86(3) Crimes Act - maximum penalty 25 years). She also asked that her guilt in respect of an offence of causing a person to take an intoxicating substance with intent to commit an indictable offence (s 38 Crimes Act - maximum penalty 25 years) be taken into account in sentencing for the wounding offence.

The judge imposed sentences of 6 years and 9 months with non-parole periods of 4 years in respect of each offence. He accumulated…

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 Youssef v The Queen

Details

AGLC: Youssef v The Queen [2013] NSWCCA 308
Case: [2013] NSWCCA 308
Decision Date: 06 December 2013

CaseChat Overview and Summary

The appellant was convicted and sentenced for a serious criminal offence involving the sustained assault and restraint of an intellectually impaired woman. The case was appealed on the grounds of the sentence. The legal issues before the court were whether the sentencing judge erred in considering the extent of harm caused in the kidnapping offence, in taking into account the benefit to the victim when assessing the utility of the guilty plea, and in failing to adequately consider the appellant's mental conditions unrelated to the offence. The court considered these issues in the context of the principles of sentencing and the facts of the case.

The court found no error in the sentencing judge's consideration of the extent of harm caused in the kidnapping offence. The court noted that the offence was more serious because the harm was significantly beyond the basic element of actual bodily harm. The court also found no error in the sentencing judge taking into account the benefit to the victim of the guilty plea. The court held that remorse was not a necessary prerequisite for the benefit of a guilty plea to be considered. The court further held that the sentencing judge had adequately considered the appellant's mental conditions, despite the brevity of the remarks. The court found that the context indicated a full consideration of the appellant's mental conditions and that there were no errors made out.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence was appropriate and that the sentencing judge had properly considered all relevant factors. The appellant's conviction and sentence were therefore affirmed, and the appeal was dismissed. The court held that there were no errors in the sentencing process and that the sentence was just and appropriate in the circumstances.

Orders