R v Shahrouk [2014] NSWCCA 87

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Shahrouk [2014] NSWCCA 87 Hearing dates: 1 May 2014 Decision date: 23 May 2014 Before: Hall J at [1] RA Hulme J at [2] Davies J at [3] Decision: 1. The Crown appeal is allowed. 2. The sentence imposed in the District Court on 16 December 2011 and corrected on 19 October 2012 is quashed. 3. The respondent is sentenced to an aggregate term of imprisonment of four years, seven months with a non-parole period of two years, eight months commencing 16 December 2011. 4. The respondent will become eligible for release on parole upon the expiration of the non-parole period on 15 August 2014. The total term of the sentence expires on 15 July 2016. 5. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 the individual sentences that would otherwise have been imposed are: (a) in respect of the offence of destroy property by fire whilst in company and taking into account the offence on the Form 1, imprisonment for a term of three years six months; and (b) in respect of the offence detaining a person with the intention of obtaining an advantage whilst in company, imprisonment for two years. Catchwords: CRIMINAL LAW - crown appeal against sentence - s 5DA Criminal Appeal Act - respondent gave statement against co-offender and undertook to provide assistance by giving evidence against co-offender - at trial of co-offender respondent asserts falsity of his statement and declines to give evidence - whether residual discretion should be exercised - whether sentence can be increased by whole of discount for assistance or whether confined to discount for future assistance Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: R v Bagnall; R v Russell (Court of Criminal Appeal (NSW), 10 June 1994, unrep) R v Burton (Court of Criminal Appeal (NSW), 6 August 1997, unrep) R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406 R v Douar [2007] NSWCCA 123 R v DV [2005] NSWCCA 319 R v El-Sayed [2003] NSWCCA 232; (2003) 57 NSWLR 659 R v GD [2013] NSWCCA 212 R v Hammond [2001] NSWCCA 34; (2001) 121 A Crim R 1 R v Hocking [2000] NSWCA 339 R v KS [2005] NSWCCA 87 R v O'Brien (Court of Criminal Appeal (NSW), 10 June 1993, unrep) R v Walters (1994) 33 NSWLR 612 R v Waqa [2004] NSWCA 405; (2004) 149 A Crim R 143 Category: Principal judgment Parties: Crown Abdulhamid Shahrouk (Respondent) Representation: Counsel: P G Ingram SC (Crown) R Burgess (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Respondent) File Number(s): 2010/343372 Decision under appeal Citation: R v Abdulhamid Shahrouk [2011] NSWDC 228 Date of Decision: 2011-12-16 00:00:00 Before: Cogswell DCJ File Number(s): 2010/343372