Aboud v R [2020] NSWSC 1648

Supreme Court New South Wales

Medium Neutral Citation: Aboud v R [2020] NSWSC 1648 Hearing dates: On the papers Decision date: 20 November 2020 Jurisdiction: Common Law Before: Button J Decision: Pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the whole case is referred to the Court of Criminal Appeal, to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW) Catchwords: CRIMINAL LAW – application for inquiry into sentence – Part 7 of the Crimes (Appeal and Review) Act 2001 – federal offences of using a carriage service to menace, harass or offend, or doing so to procure or groom a child under the age of 16 years for sex – appeal rights exhausted – consideration of possible Xiao error – referral made Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 79(2) Cases Cited: Aboud v R [2017] NSWCCA 140 Diaz v R [2019] NSWCCA 216 Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1 Category: Principal judgment Parties: Michael Aboud (Applicant) Regina (Respondent) Representation: Counsel: T D Anderson (Applicant) E Amparo, Solicitor (Respondent)

Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2020/247547

Judgment

Introduction 1. This is an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for an inquiry into the sentence imposed on Michael Aboud (the applicant) by Judge Wells SC in the District Court at Lismore, and from which the Court of Criminal Appeal has previously dismissed an appeal: see Aboud v R [2017] NSWCCA 140. 2. The application is based upon the current understanding of the law arising from the decision in Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1. That decision established, in a nutshell, that a court is entitled to take into account the utilitarian value of a guilty plea when sentencing for Commonwealth offences. 3. The applicant contends that there is a patent error demonstrated in the sentencing judgment in the District Court in 2016, in that the learned sentencing judge failed to take into account the utilitarian value of the guilty pleas of the applicant. Nor did the Court of Criminal Appeal do so in its analysis of the matter. The approaches taken at first instance and on appeal were simply in accordance with the understanding of the law at that time. 4. On that straightforward basis, the applicant seeks a referral of his whole case to the Court of Criminal Appeal to be dealt with as a further appeal against sentence. 5. Because of the simplicity of the point, and because the Commonwealth Director of Public Prosecutions (CDPP) does not oppose the referral, I shall be brief indeed.