Abdaly v The King - [2025] NSWCCA 127

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Abdaly v R [2025] NSWCCA 127
Hearing dates: 6 August 2025
Decision date: 22 August 2025
Before: Bell CJ at [1];
Price AJA at [2];
Ierace J at [3]
Decision:
(1)   Grant leave to extend time to file the notice of appeal.
(2)   Grant leave to appeal.
(3)   Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against sentence — Where applicant member of organised criminal group — Where applicant spent unusually long period on remand — Where imposition of two discrete aggregate sentences rather than one overall aggregate sentence — Whether sentencing judge failed to take into account certain periods of applicant’s remand period

Legislation Cited:
Crimes Act 1900 (NSW), ss 93T(1), 93X(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 24(a), 45(1)(c), 47, 47(3), 66, 66(1), 66(2), 66(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases Cited:
Fuller v R [2023] NSWCCA 282
Kaddour v R [2017] NSWCCA 294
Kaderavek v R [2018] NSWCCA 92
Kljaic v R [2023] NSWCCA 225
McMillan v R [2024] NSWCCA 83
Miller v R [2023] NSWCCA 267
RO v R [2019] NSWCCA 183

Category: Principal judgment
Parties: Sayed Anush Abdaly (Applicant)
Rex (Respondent)
Representation:
Counsel:
P Lange (Applicant)
S Healy (Respondent)
Solicitors:
One Group Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/358130; 2016/381616; 2017/192038
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

24 November 2023

Before:

Whitford SC DCJ

File Number(s):

2016/358130; 2016/381616; 2017/192038

HEADNOTE

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

On 24 November 2023, Sayed Anush Abdaly (the applicant) was sentenced by Whitford SC DCJ to two aggregate sentences in respect of the following offences: participate in a criminal group, contrary to s 93T(1) of the Crimes Act 1900 (NSW) (count 1); supply an indictable quantity of a prohibited drug (methylamphetamine), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (count 2); supply an indictable quantity of a prohibited drug (MDMA), contrary to s 25(1) of the Drug Misuse and Trafficking Act (count 3); and supply a small quantity of a prohibited drug (cannabis), contrary to s 25(1) Drug Misuse and Trafficking Act (count 4). The sentencing court also took into account an offence on a Form 1 for count 1, namely, habitually consorting with convicted offenders, contrary to s 93X(1) of the Crimes Act.

In respect of counts 2 and 3, the applicant received a fixed aggregate sentence of 5 years, backdated to commence on 27 December 2017 and expiring on 26 December 2022. The second aggregate sentence was for counts 1 and 4, for which the applicant received a sentence of imprisonment of 2 years and 6 months, to commence on 24 November 2023 and to expire on 23 May 2026, to be served by way of an intensive correction order (the second sentence).

The applicant sought leave to appeal out of time against the second sentence on…

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 Abdaly v The King

Details

AGLC: Abdaly v The King [2025] NSWCCA 127
Case: [2025] NSWCCA 127
Decision Date: 22 August 2025

CaseChat Overview and Summary

In Abdaly v The King, the applicant, who was a member of an organised criminal group, appealed against his sentence. The primary issue before the court was whether the sentencing judge had failed to take into account certain periods during which the applicant was on remand when determining his sentence. The applicant argued that the judge had imposed two discrete aggregate sentences rather than one overall aggregate sentence, which led to an unduly severe outcome.

The court was required to determine whether the sentencing judge had adequately considered the periods of the applicant's remand time when calculating the overall sentence. The legal issue centred on whether the judge's approach in handling the periods of remand and the aggregate sentences constituted an error that warranted an appeal. The court needed to assess whether the judge's failure to consider certain remand periods had an impact on the overall sentence imposed.

The court found that the sentencing judge had not appropriately considered all periods of the applicant's remand time. It was determined that the judge's imposition of two discrete aggregate sentences rather than one overall aggregate sentence was an error. This error had a significant impact on the severity of the sentence imposed. Consequently, the court allowed the appeal and ordered a re-sentencing, ensuring that all relevant remand periods were taken into account in the overall aggregate sentence.

Orders