Damoun v R

Court of Criminal Appeal (NSW)|2014-11-20|Before: Simpson J, Price J, McCallum J

The application for leave to appeal against sentence

The proposed ground of appeal against sentence is framed as follows: "2. His Honour erred in failing to discount the sentence by virtue of the applicant's offer to conduct the trial by way of an agreed statement of facts."
Prior to the trial, counsel for the appellant proposed that the length of the trial could be significantly shortened by the tender of agreed facts and playing of audio tapes. This did not eventuate because of resistance on the part of Ali Jomaa.
It is now submitted that, having regard to his willingness to facilitate the course of justice, that was a matter that should have been taken into account on sentence. Reliance was placed upon the decision of Whealy J in R v Elomar [2010] NSWSC 10, to that effect and De Campos v R [2006] NSWCCA 51. At sentence, the Crown accepted that this was a relevant consideration, but not one that should "overwhelm the objective seriousness [of] the offence".
Counsel for the appellant relied upon a passage in the Remarks on Sentence, in which the sentencing judge acknowledged the submission and the citation of Elomar and De Campos, and said: "In both those cases, the single Supreme Court judge in the first and the Court of Appeal in the second, recognise that even though the police do not take up the offer of assistance some recognition of it should be made as an indication of a person's intention to assist justice. I accept those as statements of principle which are binding upon me. In my opinion the question of assistance however needs to be assessed for its utility, which is clearly not determinative, the truthfulness of the offender's version and the completeness of that version. If it is the case that qualified assistance is offered, in effect disclosing that which is already known, in my opinion the offer of assistance should be regarded circumspectly. In my judgment that situation applies in the present offer."
The observations, however, were made with reference to an offer of assistance to law enforcement authorities, in relation to proposed further prosecutions of co-offenders. They were not made in relation to the offer of cooperating in order to shorten the trial.

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Resolution

The Crown position is correct. The direction as to the timing of any participant joining a conspiracy is a standard one. Of course, directions have to be tailored to the case that is made, and the Crown accepts that the meeting of 20 December 2009 was an important part of the Crown case. However, I do not see that the Crown case depended upon the jury accepting that evidence, and, nor do I see that, if for some reason the jury did not accept that that meeting took place, the other evidence was insufficient to establish the appellant's participation. Nor can I see that the appellant adopted a position on an understanding that, unless he was shown to have been involved by 20 December 2009, he could not be convicted.
A conspiracy charge proceeds on the basis of evidence of a number - sometimes a very large number - of overt acts. It is seldom necessary that any of those acts be proved beyond reasonable doubt (see Shepherd v The Queen [1990] HCA 56; 170 CLR 573, with reference to circumstantial evidence) and it is seldom that the Crown case depends upon proof of entry into a conspiracy at a particular time during the range of dates specified in the indictment. Certainly that was not here the case.
It was always open to the jury to find that any one or more of the overt acts alleged against the appellant was or were sufficient to establish his part in the conspiracy. It was not necessary for proof of the Crown case that the appellant be shown to have joined the conspiracy by 20 December. In any event, the appellant did not contest that he had had the meeting of 20 December - as set out above, he acknowledged all the acts and activities alleged against him. No unfairness was done to the appellant by the direction.
In my opinion the first limb of Ground 1 ought to be rejected.

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Cases Cited (5)

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