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Court of Criminal Appeal 14 March 2011

Fajloun & Fajloun v R

[2011] NSWCCA 41

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL SENTENCING WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Fajloun & Fajloun v R [2011] NSWCCA 41
Court: Court of Criminal Appeal, New South Wales
Date: 14 March 2011
Judges: Allsop P, RS Hulme J, McCallum J

Background

Two brothers were convicted after trial of serious offences arising from events on 12 November 2005. The elder brother had been separated from his wife, who was living in a rented unit at North Parramatta. Despite her attempts to obtain a restraining order the previous day, the two men arrived at her apartment early that morning, broke down the front door using a sledgehammer, and dragged her by the hair down three flights of tiled stairs.

The victim was bundled into a car and driven to the brothers' parents' home at Guildford, where she was held captive for approximately eight hours. During that time, the elder brother beat her, breaking a rib, pulling her hair, striking her face, and hitting her over the head with a mop handle. She ultimately escaped by attracting the attention of a passer-by through a window.

Each brother was convicted of aggravated breaking and entering and aggravated kidnapping. The elder brother was additionally convicted of assault occasioning actual bodily harm. Both sought leave to appeal in the Court of Criminal Appeal, contending that the sentences imposed in the District Court were manifestly excessive.

  • Whether the total sentences imposed on each applicant were manifestly excessive
  • Whether the sentencing judge erred in the degree of partial accumulation applied across the individual sentences
  • Whether the judge erred in his assessment of the objective seriousness of the offending
  • Whether the judge failed to take into account evidence of mental condition
  • Whether insufficient weight was given to each applicant's good character and the low likelihood of reoffending

Decision

The Court of Criminal Appeal granted leave to appeal to both applicants and allowed both appeals, quashing the original sentences and substituting new ones. The Court accepted that error had been established in the structure and accumulation of the sentences, producing totals that were manifestly excessive when the offending of each man was properly assessed in its entirety.

On the question of accumulation, the Court found that the degree to which the individual sentences had been stacked on top of one another (rather than made concurrent or only partially cumulative) was not justified by the sentencing principles applicable to the totality of the offending. Adjustments were made to the commencement dates of the individual sentences to produce a result more consistent with the total criminality involved.

The Court did not resile from the gravity of the conduct. In re-sentencing, the Court emphasised that the revised sentences still carried a clear denunciation of what it described as a brutal, violent, and terrifying attack. The Court expressly noted that the phrase "domestic violence" used by the sentencing judge was inapt to capture the full seriousness of what had occurred. Despite the applicants' standing in their family and community, no express finding had been made by the sentencing judge as to why such conduct had been inflicted, and the Court's revised sentences continued to reflect community condemnation of the offending.

Orders Made

In respect of the elder brother (Raad Fajloun):
- Leave to appeal granted; appeal allowed
- District Court sentences quashed and replaced as follows:
- Count 3 (assault occasioning actual bodily harm): non-parole period of 2 years from 19 November 2007, balance of term of 1 year
- Count 2 (aggravated kidnapping): non-parole period of 4 years from 19 May 2008, balance of term of 3 years
- Count 1 (aggravated breaking and entering): non-parole period of 5 years from 19 November 2008, balance of term of 3 years
- Eligible for parole on 19 November 2013

In respect of the younger brother (Mikel Fajloun):
- Leave to appeal granted; appeal allowed
- District Court sentences quashed and replaced as follows:
- Count 1 (aggravated breaking and entering): non-parole period of 4 years from 19 December 2008, balance of term of 3 years
- Count 2 (aggravated kidnapping): fixed term of 2 years and 3 months from 15 November 2010
- Eligible for parole on 15 February 2013

Key Takeaways

  • The Court of Criminal Appeal confirmed that error in the degree of partial accumulation of individual sentences can, of itself, produce a manifestly excessive total sentence warranting appellate intervention.
  • Upholding the appeals on accumulation grounds did not require the Court to depart from its assessment that the offending was objectively very serious; the revised sentences preserved strong denunciatory and punitive elements.
  • Where a sentencing judge characterises serious, premeditated violent offending as "domestic violence," the Court of Criminal Appeal may find that framing insufficient to reflect the full gravity of the conduct.
  • A finding of good character and community standing does not insulate an offender from significant custodial sentences where the objective seriousness of the offending is high.
  • Both applicants received reduced total sentences primarily through adjustments to commencement dates and accumulation structures, not through any reduction in the individual sentence lengths for the most serious counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 86(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Criminal Appeal Act 1912 (NSW), s 7(1A)

Cases:
- Georgopolous v R [2010] NSWCCA 246
- Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498
- Sivell v R [2009] NSWCCA 286
- R v Terkmani [2009] NSWCCA 142
- R v Way [2004] NSWCCA 131; 60 NSWLR 168