AYOUBI v REGINA [2006] NSWCCA 364

New South Wales Court of Criminal Appeal

CITATION: AYOUBI v REGINA [2006] NSWCCA 364

HEARING DATE(S): 5 September 2006; 17 November 2006

JUDGMENT DATE: 24 November 2006

JUDGMENT OF: Giles JA at 1; Sully J at 2; Latham J at 3

DECISION: Leave to appeal against sentence granted; Appeal dismissed.

CATCHWORDS: Sentence Appeal - Break, Enter and Steal offences - sentences imposed on the basis that offences committed while the Applicant was suffering from a mental illness - whether Court should allow fresh evidence - no miscarriage of justice justifying reception of fresh evidence

Benitez v R (2006) 160 A Crim R 166 ; [2006] NSWCCA 21 CASES CITED: R v Matthews [2004] NSWCCA 112 R v Fordham (1997) 98 A Crim R 359

PARTIES: Mohamad Ayoubi - Applicant Regina - Respondent

FILE NUMBER(S): CCA 2006/1741

COUNSEL: DG Dalton SC - Applicant P Barrett - Respondent

SOLICITORS: J Hajje - Applicant S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3169

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

LOWER COURT DATE OF DECISION: 25 November 2005

IN THE COURT OF CRIMINAL APPEAL 2006/1741

GILES JA SULLY J LATHAM J

24 NOVEMBER 2006 MOHAMAD AYOUBI v REGINA Judgment 1 GILES JA : I agree with Latham J. 2 SULLY J : I agree with Latham J. 3 LATHAM J : The applicant Mohamad Ayoubi seeks leave to appeal from sentences imposed by Sides QC DCJ at Campbelltown on 25 November 2005, following pleas of guilty to 12 counts of Break Enter and Steal, one count of Break Enter with Intent to Steal and one count of Stealing and Attempting to Break Out. The applicant requested that a further 14 offences be taken into account on a Form One when his Honour came to sentence the applicant on the last count on the indictment (Count 14). 4 The structure of the sentences imposed is as follows :- Counts 2, 4, 10, 11 and 13 (each carrying a maximum penalty of 14 years imprisonment) : on each, a sentence of 30 months imprisonment to date from 24 January 2004, with a non parole period of 15 months expiring on 23 April 2005. Counts 1, 3, 5, 6, 7, 8, 9 and 12 (each carrying a maximum penalty of 14 years imprisonment) : on each, a sentence of three years imprisonment to date from 24 January 2004, with a non parole period of 18 months expiring on 23 July 2005. Count 14 (carrying a maximum penalty of 10 years imprisonment and taking into account 14 matters on the Form One) : non parole period of two years six months, to date from 25 July 2004, expiring 24 January 2007, with the balance of term of two years, expiring 24 January 2009. 5 The aggregate sentence was therefore a head sentence of five years with a non parole period of three years, expiring on 24 January 2007.