Abbas v The King - [2024] NSWCCA 228

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Abbas v R [2024] NSWCCA 228
Hearing dates: 23 September 2024
Date of orders: 6 December 2024
Decision date: 06 December 2024
Before: N Adams J at [1];
Chen J at [85];
Rigg J at [86].
Decision:
(1) Leave to appeal allowed.
(2) Appeal allowed.
(3) Quash the sentence imposed by Sutherland SC DCJ on 15 December 2023 and in lieu thereof sentence the applicant to a term of imprisonment of 7 years and 6 months commencing on 28 October 2022 and expiring on 27 April 2030 with a non-parole period of 4 years commencing on 28 October 2022 and expiring on 27 October 2026. The applicant will be eligible for parole on 27 October 2026.

Catchwords:
CRIMINAL LAW – SENTENCE APPEAL – Commonwealth offence – mandatory requirement to take into account prospects of rehabilitation – Crown concession error established – Kentwell error – appeal allowed – resentence – mid-range objective seriousness – subjective value of guilty plea – moderate prospects of rehabilitation.

Legislation Cited:
Crimes Act1914 (Cth), s 16A(2)
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
Criminal Code Act 1995 (Cth), s 307.1(1)

Cases Cited:
Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
Giles-Adams v R; Preca v R [2023] NSWCCA 122
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lee v R [2016] NSWCCA 146
R v Abbas [2023] NSWDC 644
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Abbrar Sohel Abbas (Applicant)
Rex (Respondent)
Representation:
Counsel:
TF Woods (Applicant)
CJ Tran (Respondent)
Solicitors:
Olympus Law Partners (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2022/00323380
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Abbas [2023] NSWDC 644

Date of Decision:

15 December 2023

Before:

Sutherland SC DCJ

File Number(s):

2022/00323380

JUDGMENT

N ADAMS J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the severity of the sentence imposed on him by Judge Sutherland SC in the District Court at Sydney on 15 December 2023. The applicant was sentenced following an early plea of guilty to one count of importing a commercial quantity of a border-controlled drug contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) being 17 bottles of body oil which concealed 7747.4 grams of methamphetamine.
The applicant was 24 years old at the time of the offending. He was arrested at Sydney Airport on 28 October 2022 and has remained in custody since that date. He was sentenced to a term of imprisonment of 8 years and 3 months commencing on 28 October 2022 and expiring on 27 January 2031 with a non-parole period of 4 years and 6 months commencing on 28 October 2022 and expiring on 27 April 2027. He will be eligible for parole on 27 April 2027.
The applicant relies…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbas v The King

Details

AGLC: Abbas v The King [2024] NSWCCA 228
Case: [2024] NSWCCA 228
Decision Date: 06 December 2024

CaseChat Overview and Summary

The appellant, Abbas, was convicted of a Commonwealth offence and sentenced to imprisonment. He appealed against the sentence on the grounds that the trial judge failed to take into account the prospects of rehabilitation as required by statute. The appeal was heard by the High Court of Australia. The central issue for the court was whether the trial judge's failure to consider the prospects of rehabilitation constituted a legally significant error, and if so, whether it was a Crown concession error or a Kentwell error. The court was required to determine the appropriate course of action in light of these errors and the statutory requirements.

The court found that the trial judge's failure to consider the prospects of rehabilitation was indeed a legally significant error. This was because the statutory provision mandated that such prospects be taken into account when sentencing. The court determined that the error was a Crown concession error, as the Crown had conceded that the trial judge had not properly considered the prospects of rehabilitation. This concession established that the error was legally significant and warranted the allowance of the appeal. The court then proceeded to resentence the appellant, taking into account the mid-range objective seriousness of the offence, the subjective value of the guilty plea, and the moderate prospects of rehabilitation.

In determining the appropriate sentence, the court balanced the mid-range objective seriousness of the offence with the subjective value of the appellant's guilty plea and his moderate prospects of rehabilitation. The court concluded that a sentence within the mid-range of the sentencing scale was appropriate, given these factors. The appeal was allowed, and the original sentence was set aside in favour of a new sentence that appropriately reflected the statutory requirements and the specific circumstances of the case. The court's decision underscored the importance of adhering to statutory mandates in sentencing and the consequences of failing to do so.

Orders