Hello v R; El-Skaf v R; Bakkour v R; Hosainy v R [2010] NSWCCA 311

Hello v R; El-Skaf v R; Bakkour v R; Hosainy v R [2010] NSWCCA 311

Leave to appeal was granted to all applicants. The appeals by Bakkour, Hosainy and El-Skaf were dismissed because the sentences imposed were not shown to be affected by an error warranting a lesser sentence and were not manifestly excessive; the Judge's assessment of Bakkour and Hosainy's objective gravity was, if anything, generous, and El-Skaf's bail conditions were not shown to be relevantly onerous. Hello's appeal was allowed because the Judge's assessment of his objective gravity could not be reconciled with his conduct and with R v Hamieh, creating a well-founded disparity; his sentence was quashed and a lesser sentence imposed.

Jurisdiction
Australia
Judgment Date
15 December 2010
Procedural Posture
Criminal Appeals Against Sentence / Applications for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Hello: leave to appeal granted, appeal allowed, sentence quashed and substituted. El-Skaf, Bakkour and Hosainy: leave to appeal granted, appeals dismissed.
Legal Topics
['appeals Against Sentence' 'knowingly Facilitate Car Rebirthing Activity on an Organised Basis' 'objective Gravity' 'parity and Disparity Between Co Offenders' 'manifest Excess' 'onerous Bail Conditions' 'standard Non Parole Period' 'guilty Plea Discount']
['criminal Law' 'sentencing'] ['appeals Against Sentence' 'knowingly Facilitate Car Rebirthing Activity on an Organised Basis' 'objective Gravity' 'parity and Disparity Between Co Offenders' 'manifest Excess' 'onerous Bail Conditions' 'standard Non Parole Period' 'guilty Plea Discount']

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Procedural Posture

Criminal Appeals Against Sentence / Applications for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in assessing the objective gravity of the applicants' offences under s 154G(1) of the Crimes Act 1900." 'Whether there was unjustified disparity between sentences imposed on co-offenders, particularly for Hello and Hosainy.' "Whether El-Skaf's bail conditions were onerous and should have mitigated sentence." 'Whether any of the sentences were manifestly excessive.' 'Whether the discount for the plea of guilty was wrongly applied.']

Ratio Decidendi

Leave to appeal was granted to all applicants. The appeals by Bakkour, Hosainy and El-Skaf were dismissed because the sentences imposed were not shown to be affected by an error warranting a lesser sentence and were not manifestly excessive; the Judge's assessment of Bakkour and Hosainy's objective gravity was, if anything, generous, and El-Skaf's bail conditions were not shown to be relevantly onerous. Hello's appeal was allowed because the Judge's assessment of his objective gravity could not be reconciled with his conduct and with R v Hamieh, creating a well-founded disparity; his sentence was quashed and a lesser sentence imposed.

Court Disposition

Hello: leave to appeal granted, appeal allowed, sentence quashed and substituted. El-Skaf, Bakkour and Hosainy: leave to appeal granted, appeals dismissed.

Orders

  • ['HELLO - (Applicant 1): Leave to appeal granted.' 'HELLO - (Applicant 1): Appeal allowed.' 'HELLO - (Applicant 1): Quash the sentence imposed on 24 November 2009 and in lieu, a non parole period of 2 years is imposed, to date from 17 November 2009, expiring 16 November 2011, with a balance of term of 17 months,...