AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 17 October 2018

R v Fouani

[2018] NSWCCA 230

Assault & violencePublic order & justice offences
CRIMINAL LAW CROWN APPEAL OFFENDER FOUND GUILTY AFTER TRIAL WHETHER SENTENCE MANIFESTLY INADEQUATE CONSIDERABLE PLANNING INVOLVED CROWN APPEAL MADE OUT

Citation: R v Fouani [2018] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 17 October 2018
Judge(s): Hoeben CJ at CL; Walton J; Button J

Background

The respondent, a man in his early forties, was convicted after trial of two serious offences: causing grievous bodily harm with intent, and recruiting a child to carry out criminal activity. The offending arose from a calculated plan to attack a woman who had declined to stop working at a brothel and had ended a romantic relationship with the respondent.

The respondent coerced his 17-year-old cousin, using threats of violence against the cousin's family and at one point brandishing a firearm, into carrying out the physical attack. He directed the minor to pour petrol over the victim's head and upper body and then set her alight. The attack caused severe burns covering 45 per cent of the victim's body. After the attack, the respondent returned to the crime scene and attempted to conceal his involvement, and the following day instructed the minor to make misleading calls to police and a radio station.

In the District Court, Judge Whitford SC imposed an aggregate sentence of 14 years' imprisonment with a non-parole period of 10 years and 6 months. The Director of Public Prosecutions appealed on a single ground: that the aggregate sentence was manifestly inadequate.

  • Whether the aggregate sentence of 14 years was manifestly inadequate given the objective seriousness of the offending, the absence of remorse, and the circumstances of the offending.
  • Whether, even if the sentence was found to be manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene.

Decision

Hoeben CJ at CL (with Walton J and Button J agreeing) found that the sentence imposed for Count 1, causing grievous bodily harm with intent, was manifestly inadequate, which in turn rendered the aggregate sentence manifestly inadequate. The objective seriousness of the offending was assessed as approaching the upper level. Key features included the extensive and permanent scarring to the victim, the considerable planning involved, the coercion of a minor to carry out the attack, the respondent's complete absence of remorse or contrition, and the relatively weak subjective case available to the respondent.

On the question of residual discretion, the Court found no basis to decline to intervene. The inadequate sentence had not been caused by any conduct of the Crown at first instance, no significant delay had occurred in bringing the appeal, and no post-sentence evidence warranted restraint. Critically, the Court found that the sentence failed to reflect the criminality of the offending to a degree that carried the capacity to undermine public confidence in the proper administration of the criminal justice system.

The Court then re-sentenced the respondent. Taking into account all the relevant factors, including the sentencing judge's findings, the objective gravity of the offences, the absence of remorse, and the respondent's limited subjective circumstances, the Court imposed an aggregate sentence of 18 years with a non-parole period of 13 years and 6 months.

Orders Made

  • Crown appeal allowed.
  • The aggregate sentence imposed by Whitford SC DCJ on 16 March 2018 was quashed.
  • In lieu thereof, the respondent was sentenced to imprisonment with a non-parole period of 13 years and 6 months, commencing 11 April 2013 and expiring 10 October 2026, with a balance of term of 4 years and 6 months, expiring 10 April 2031.
  • Indicative sentence for Count 1: 16 years with a non-parole period of 12 years.
  • Indicative sentence for Count 2: 5 years (unchanged from first instance).

Key Takeaways

  • A sentence may be manifestly inadequate even where the sentencing judge has made no identifiable legal error in principle; the overall result can be disproportionate to the criminality involved.
  • The Court of Criminal Appeal confirmed that the residual discretion to decline to intervene in a Crown appeal will not be exercised where the sentence fails to reflect the gravity of the offending to a degree that risks undermining public confidence in the criminal justice system.
  • Coercing a minor to carry out a violent offence through threats and intimidation is a significant aggravating feature, distinct from, and additional to, the offence of recruiting a child to criminal activity.
  • Considerable planning, permanent and severe physical injury to the victim, and a complete absence of remorse are factors that push a sentence toward the upper range for offences of this kind under s 33(1)(b) of the Crimes Act 1900 (NSW).
  • In dismissing any reliance on residual discretion, the Court reinforced that a Crown appeal does not require the Crown to have contributed to the error at first instance before the appellate court will re-sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 351A(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v CTG [2017] NSWCCA 163
- R v Harris [2015] NSWCCA 81
- The Queen v Kilic [2016] HCA 48; 259 CLR 256