Application by Chaouki Bou Antoun pursuant to s 78(1) Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1540

Supreme Court New South Wales

Medium Neutral Citation: Application by Chaouki Bou Antoun pursuant to s 78(1) Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1540 Hearing dates: On the papers Decision date: 19 November 2013 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Application refused Catchwords: APPLICATION - application for inquiry into sentence pursuant to s 78, Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentencing infected by Muldrock error - offence of solicit to murder - guilty plea - sentencing judge did not engage in two stage approach to sentence - application refused Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Aitchison v R [2012] NSWCCA 82 Bou-Antoun v R [2008] NSWCCA 1 Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120 R v Potier [2004] NSWCCA 136 Category: Principal judgment Parties: Chaouki Bou-Antoun - (Applicant) Regina - (Respondent) Representation: Solicitors Legal Aid New South Wales - (Applicant) Crown Solicitor's Office - (Respondent) File Number(s): 2013/214994

decision 1The applicant, Chaouki Bou-Antoun, applies for an inquiry into his sentence pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (the Act). The application seeks the referral of the sentence to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. 2The applicant maintains that there is a doubt or question as to a mitigating circumstance in the case, namely that the applicant's sentencing was infected by Muldrock error, in that the standard non-parole period was given undue emphasis in the sentencing process contrary to the decision of the High Court in Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120. 3In December 2003 the applicant was charged with solicit to murder, contrary to s 26 of the Crimes Act 1900. The maximum penalty is one of 25 years' imprisonment with a standard non-parole period of 10 years. 4On 12 September 2005 the applicant pleaded guilty to that offence in the District Court. 5On 24 August 2006, Sorby DCJ sentenced the applicant to 14 years' imprisonment, including a non-parole period of 10 years to date from 30 December 2003. The applicant is eligible for release to parole on 30 December 2013. 6The applicant appealed against his sentence to the Court of Criminal Appeal. On 1 February 2008 the applicant's appeal was dismissed: Bou-Antoun v R [2008] NSWCCA 1. 7The circumstances of the offence may be briefly summarised. In May 2003, the applicant's son was charged with a number of sexual offences. Whilst on remand the applicant's son spoke to his cellmate about the prospect of having the complainant killed so that she could not give evidence against him. The cellmate approached the authorities and thereafter posed as a go-between with an undercover operative who pretended to be willing to kill the complainant for a fee of $23,000. The applicant agreed to fund the murder of the complainant. He paid the undercover operative $3000 as down payment. 8In order to determine whether the sentencing proceedings were infected by error, consistent with the applicant's submissions, the following remarks by the sentencing judge are pertinent. After noting that the offence was one of the most serious crimes in the State and after referring to the decision in R v Potier [2004] NSWCCA 136, the judge said :- By virtue of Division 1A of the Crimes (Sentencing Procedure) Act 1999 this offence is subject to a standard non-parole provision as I indicated earlier in these remarks. The standard non-parole period for the offence is 10 years and as there was a plea, the standard non-parole period is not mandatory but a benchmark only (see R v Way [2004] NSWCCA 186) but it is a persuasive benchmark. Way's case obliges me to evaluate where the offence lies in relation to the middle range of objective seriousness. 9His Honour then determined that the offence was above the middle range of objective seriousness. The judge next dealt with the question of parity, having sentenced the applicant's son for the same offence. Relevantly, the applicant's son also received the same sentence, although he entered a plea of guilty at the earliest opportunity, in contrast to the applicant who pleaded guilty on the first day of his trial. At no stage has the applicant mounted an argument based on disparity. 10The judge went on to weigh "the grave and objective seriousness of the crime with the subjective factors in the offender's favour including his lack of serious criminal record, his good character, his work history" and some evidence of remorse. Next, his Honour referred to the need for specific and general deterrence before pronouncing sentence on the applicant. 11The five grounds of appeal advanced in the Court of Criminal Appeal were error in treating the threat of violence as an aggravating factor, error in finding that the offence was part of an organised criminal activity, error in failing to take into account entrapment as a mitigating factor, error in failing to give a discount for the plea of guilty and manifest excess. All of these grounds were rejected. 12In rejecting the manifest excess ground, the Court acknowledged that the standard non-parole period operated as a guide, rather than being directly applicable and that, if the applicant had been convicted after trial, the standard non-parole period would apply to an offence in the middle of the range of objective seriousness. The Court noted that his Honour specifically found that the offence was above that mid range. 13The Court went on to note that :- the criminal enterprise was embarked upon in all seriousness. It is the very nature of the crime of solicitation to murder that it consists of an intent and a request. It is appropriate therefore to gauge, in particular, the level of criminality demonstrated in the intent. In this case, for the reasons given by his Honour concerning the intended barbarism and cruelty, the level must be very high and the finding that it is a crime above the mid range of seriousness is unchallengeable. 14Furthermore, the Court referred to the fact that the available statistics (which were pre Way) showed a pattern of sentencing lower than that received by the applicant, but that the specification of the standard non-parole period evinced a clear legislative intention regarding the sentencing level. 15The applicant maintains that both the sentencing judge and the Court of Criminal Appeal relied upon the important role of the nominated standard non-parole period in sentencing the applicant. The applicant contends that the standard non-parole period had a primary or determinative significance. It is submitted that if the applicant had been "sentenced correctly in accordance with Muldrock his sentence would have been appreciably less than it currently is". 16These submissions are difficult to accept in the face of the sentencing judge's approach to sentence, in particular, his Honour's evaluation of the objective gravity of the offence (with which the applicant does not take issue for the purposes of this application, and which was confirmed by the Court of Criminal Appeal), and express reference to the standard non-parole period as no more than a persuasive benchmark. Moreover, the sentencing judge was conscious of the need to weigh or synthesise the objective and subjective factors. Whether or not the decision in Way required the judge to assess the objective gravity of the offence relative to the mid range, this Court has noted on many occasions that an assessment of the objective gravity of an offence has always been an integral part of the sentencing process : see Aitchison v R [2012] NSWCCA 82 at [11]. 17There is nothing in the judgment of Grove J (Simpson and Barr JJ agreeing), to which reference has been made at [12] to [14], that accords a primary or determinative significance to the standard non-parole period. The Court did no more than deal with the argument in relation to manifest excess by reference to statistics that were of minimal relevance, given the likelihood that the sentencing range for offences carrying a standard non-parole period would increase as a result of the decision in Way : see Muldrock at [31]. 18At no stage did the sentencing judge engage in a two stage approach to sentence, that is, by determining that the standard non-parole period was applicable and then determining whether there was anything that warranted a departure from that standard. The sentencing judge took into account the full range of factors in determining the appropriate sentence, whilst mindful of the two legislative guideposts, namely, the maximum sentence and the standard non-parole period : Muldrock at [27]. 19I do not entertain any doubt or question as to a mitigating circumstance in the applicant's case. The application is refused.