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
Category: Principal judgment Parties: Abbrar Sohel Abbas (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
TF Woods (Applicant)
CJ Tran (Respondent)
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
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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.
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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.
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The applicant relies…
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- AGLC
- Abbas v The King [2024] NSWCCA 228
- Case
- [2024] NSWCCA 228
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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