Abdallah v The King - [2025] NSWCCA 98

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Abdallah v R [2025] NSWCCA 98
Hearing dates: 23 May 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Before: Kirk JA at [1];
Davies J at [2];
Wright J at [3]
Decision:
(1) The applicant has leave to appeal.
(2) The appeal is dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – whether sentencing judge failed to take into account mitigating factor of provocation on sentence – findings of fact open to sentencing judge – no error established
CRIME – Appeals – Appeals against sentence – whether offender was entitled to discount for the facilitation of justice pursuant to s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) – factors said to facilitate justice not identified by defence counsel at hearing – no further discount beyond 25% for guilty plea warranted – no error established

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, 22A
Criminal Appeal Act1912 (NSW), s 5

Cases Cited:
BAP v R [2024] NSWCCA 206
Bhatt v R [2024] NSWCCA 214
Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
Finnigan v R [2022] NSWCCA 181
House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40
R v Baker [2000] NSWCCA 85
R v Mendez [2002] NSWCCA 415
Vaiusu v R [2017] NSWCCA 71
Yang v R [2012] NSWCCA 49

Category: Principal judgment
Parties: Adam Abdallah (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Woods (Applicant)
M Millward (Respondent)
Solicitors:
Cordoba Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00137733
Decision under appeal

Court or tribunal:

District Court at Sydney

Jurisdiction:

Criminal

Citation:

[2025] NSWDC 33

Date of Decision:

26 February 2025

Before:

Noman SC DCJ

File Number(s):

2023/00137733

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty in the New South Wales District Court to the offence of recklessly causing grievous bodily harm and was sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 1 year and 2 months. He was initially charged with causing grievous bodily harm with intent to cause grievous bodily harm and the offence for which he was ultimately convicted and sentenced was charged as an offence in the alternative. The applicant was committed to stand trial in the District Court for the more serious offence. He had offered to plead guilty to the lesser offence in the Local Court but his plea was not accepted then. At a “super callover” in the District Court, the applicant’s plea was accepted and as a result he was entitled to a 25% discount on his sentence.

The applicant sought leave to appeal the sentence imposed on him on two grounds:

1. The sentencing Judge erred by finding that the victim’s provocative conduct did not significantly mitigate the applicant’s conduct.

2. The sentencing Judge erred in failing to address a submission that the penalty should…

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 Abdallah v The King

Details

AGLC: Abdallah v The King [2025] NSWCCA 98
Case: [2025] NSWCCA 98
Decision Date: 20 June 2025

CaseChat Overview and Summary

In the case of Abdallah v The King, the appellant, Abdallah, sought to appeal against the sentence imposed by the sentencing judge. The dispute centred around the contention that the judge had failed to appropriately consider the mitigating factor of provocation in determining the sentence. Additionally, Abdallah argued that he was entitled to a discount for facilitating justice under section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The appeal was heard in the higher court of appeal in Australia.

The legal issues before the court included whether the sentencing judge had erred in not considering provocation as a mitigating factor and whether Abdallah was entitled to a further discount for facilitating justice. The court needed to determine if the findings of fact made by the sentencing judge were open to him and if there was any error in the application of the law in relation to the sentencing discount.

The court found that the sentencing judge had not erred in not considering provocation as a mitigating factor because the findings of fact were open to the judge. The court also determined that Abdallah was not entitled to a further discount for facilitating justice as the factors said to facilitate justice had not been identified by the defence counsel at the hearing. The court held that no error had been established in either of these matters. Consequently, the appeal was dismissed, and the original sentence stood.

No further orders were made by the court.

Orders