Aboud v R [2021] NSWCCA 77

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Aboud v R [2021] NSWCCA 77 Hearing dates: 17 March 2021 Date of orders: 28 April 2021 Decision date: 28 April 2021 Before: Simpson AJA at [1] Bellew J at [8] Wilson J at [113] Decision: 1) Appeal dismissed. Catchwords: CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Where appellant pleaded guilty to one count of using a carriage service to menace, harass or offend, four counts of using a carriage service to groom a person under the age of 16 years for sexual activity and one count of using a carriage service to procure a person under the age of 16 years for sexual activity – Where sentencing judge erred by failing to take into account the utilitarian value of the appellant's plea of guilty – Error established giving rise to the necessity to exercise the sentencing discretion afresh – Where plea was entered at the first available opportunity – Where the appellant had co-operated with authorities – Whether specific discount should be applied to reflect that co-operation – Where appellant demonstrated genuine remorse – Where appellant had no prior criminal history – Where offending was planned and involved the creation of false identities - Serious offending committed over a sustained period of time – Where offending involved predatory and manipulative behaviour towards teenage girls – No lesser sentence warranted in the fresh exercise of the sentencing discretion - Leave to appeal granted – Appeal dismissed CRIMINAL LAW – Sentence – Relevance of delay when sentencing a Federal Offender Legislation Cited: Crimes Act 1914 (Cth) Crimes (Appeal and Review) Act 2001 (NSW) Crimes Legislation Amendment Act (No. 2) 1989 (Cth) Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code 1995 (Cth) Cases Cited: Aboud v R [2017] NSWCCA 140 Aboud v R [2020] NSWSC 1648 Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 Davis v R [2015] NSWCCA 90 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Holyoak v R (1995) 82 A Crim R 50 Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 Pratten v R (2017) 94 NSWLR 194; [2017] NSWCCA 42 R v Asplund [2010] NSWCCA 316; (2010) 216 A Crim R 48 R v El Karhani (1990) 21 NSWLR 371 R v Gay [2002] NSWCCA 6 R v Paull (1990) 20 NSWLR 427 R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33 Thammavongsa v R [2015] NSWCCA 107 Weber v R [2020] NSWCCA 103 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Michael Anthony Aboud – Appellant Regina - Respondent Representation: Counsel: T D Anderson – Appellant S Duggan - Respondent