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Court of Criminal Appeal 11 February 2011

MOKHAIBER, Tarek v R

[2011] NSWCCA 10

Sexual offences
CRIMINAL LAW APPEAL SENTENCING FRESH EVIDENCE ALLOWED HIGHLY EXCEPTIONAL CIRCUMSTANCES SENTENCE REDUCED

Citation: MOKHAIBER, Tarek v R [2011] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 11 February 2011
Judge(s): James J, Hislop J, Price J (all agreeing)

Background

The applicant had pleaded guilty to ten sexual offences against a 14-year-old girl, including aggravated indecent assault and multiple counts of sexual intercourse with a child aged between 14 and 16. The offences occurred between December 2007 and August 2008, after the applicant repeatedly approached the complainant while she was travelling home from school in her uniform. The sentencing judge in the District Court imposed a total effective sentence of six years imprisonment, with a non-parole period of four years, commencing 18 September 2008.

After sentence was imposed, the applicant's three-year-old daughter Sara was diagnosed in December 2009 with metachromatic leukodystrophy, a progressive genetic condition affecting the brain and peripheral nerves. Medical evidence from a paediatric neurologist indicated that death typically occurs before age seven and rarely extends beyond ten years, with progressive loss of mobility and dementia. The condition was genetically present at the time of sentencing but had not yet been diagnosed.

The applicant sought leave to appeal against his sentence on the single ground that the sentencing proceedings miscarried due to the absence of this fresh evidence.

  • Whether evidence of a post-sentence diagnosis of a terminal condition in the applicant's young child constitutes admissible fresh evidence on a sentence appeal
  • Whether the fresh evidence, if admitted, warranted a reduction in the total effective sentence

Decision

The Court of Criminal Appeal confirmed the general principle that evidence of events occurring after sentence is not ordinarily admitted on appeal, because the appropriateness of a sentence is assessed by reference to the material before the sentencing judge. Neither party contended that any error had occurred in the original sentencing.

However, the Court confirmed a well-established exception: fresh evidence about the health of an offender or a family member may be received where the condition existed but was unknown, or its effect not fully appreciated, at the time of sentence. Because Sara's genetic condition was present but undiagnosed at sentencing, it met the test for fresh evidence. The Crown did not oppose its reception, and the Court was satisfied the special circumstances justified admitting it.

On the substantive question, Price J (with whom James J and Hislop J agreed) found that the applicant's wife, left to care for Sara and two other young children while managing Sara's terminal diagnosis, would suffer overwhelming hardship as a result of the applicant's imprisonment. The Court characterised these as highly exceptional circumstances. Some additional weight was also given to the applicant's own distress at being unable to assist his family, which the Court acknowledged would make imprisonment more burdensome.

The Court was careful to note that neither the applicant nor the Crown had suggested the original sentence was excessive on the material available at sentencing, and that the objective seriousness of the offending remained significant. Deterrence, both general and specific, remained important. The Court reduced the total effective sentence from six years to five years and six months, with a non-parole period of three years and six months, describing this as the minimum that could reflect the seriousness of the offences.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentence on count 5 quashed; replaced with a non-parole period of 2 years commencing 18 March 2010 and expiring 17 March 2012, with a balance of term of 1 year expiring 17 March 2013
  • Sentence on count 6 quashed; replaced with a non-parole period of 2 years commencing 18 March 2010 and expiring 17 March 2012, with a balance of term of 2 years expiring 17 March 2014
  • All other sentences confirmed
  • Applicant eligible for release on parole on 17 March 2012

Key Takeaways

  • Fresh evidence of a health condition affecting a family member may be admitted on a sentence appeal where the condition was genetically or otherwise present at sentencing but had not yet been diagnosed or its effect appreciated.
  • No distinction exists, for the purposes of admitting fresh evidence, between evidence relating to the offender's own health and evidence relating to the health of a family member whose condition imposes exceptional hardship on a partner and children.
  • A post-sentence terminal diagnosis in a young child does not automatically reduce a sentence; the Court balanced these highly exceptional personal circumstances against the objective seriousness of the offending and the continuing importance of general and specific deterrence.
  • In reducing the sentence, the Court also gave modest weight to the additional burden imprisonment places on an offender who is unable to assist in caring for a seriously ill child.
  • The Court of Criminal Appeal confirmed that the standard for intervention is high: the circumstances must be characterised as highly exceptional before a reduction below an otherwise appropriate sentence is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Iglesias v R [2006] NSWCCA 261
- Markovic v R; Pantelic v R [2010] VSCA 105
- R v Ashton [2002] NSWCCA 498
- R v Dent (NSW Court of Criminal Appeal, 14 March 1991, unreported)
- R v Edwards (1996) 90 A Crim R 510
- R v Ehrenburg (NSW Court of Criminal Appeal, 14 December 1990, unreported)
- R v Mioduszewski [2004] NSWCCA 154
- Stumbles v R [2006] NSWCCA 418