Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Afiouny v R [2017] NSWCCA 23 Hearing dates: 20 February 2017 Date of orders: 03 March 2017 Decision date: 03 March 2017 Before: Hoeben CJ at CL at [1]
Latham J at [52]
Price J at [53]Decision: Leave to appeal granted.
Appeal dismissed.Catchwords: CRIMINAL LAW – sentence appeal – causing loss to Commonwealth – illicit importation of tobacco without paying duty – at time of sentence offender already serving a sentence for bribery of a Commonwealth official – whether total non-parole period excessive – whether parole period inadequate to allow proper supervision and rehabilitation – whether adequate reasons for non-parole period – whether sentence manifestly excessive – the non-parole period was the minimum period to be served – leave to appeal granted but appeal dismissed. Legislation Cited: Crimes Act 1914 (Cth) – ss 16A(1) and (2), 19AD(3)(b)
Criminal Code – ss 135.1(5), 141.1(1)Cases Cited: Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176
Bugmy v R [1990] HCA 18; 169 CLR 525
Crimes Act 1914 (Cth) – ss 16A(1) and (2), 19AD(3)(b)
Deakin v R [1984] HCA 31; 58 ALJR 367
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lehn v R [2016] NSWCCA 255
Mill v The Queen [1988] HCA 70; 166 CLR 59
Power v The Queen [1974] HCA 26; 131 CLR 623Category: Principal judgment Parties: Bilal Afiouny – Applicant
Regina – Respondent CrownRepresentation: Counsel:
Solicitors:
G James QC/TD Anderson – Applicant
KC Morgan – Respondent Crown
One Group Legal – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown
File Number(s): 2013/192662 Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 17 May 2016
- Before:
- Arnott SC DCJ
- File Number(s):
- 2013/192662
Judgment
-
HOEBEN CJ at CL:
Offence and sentence
The applicant was sentenced on 12 June 2015 after pleading guilty to one offence against s 135.1(5) of the Criminal Code for dishonestly causing loss to the Commonwealth in relation to the illicit importation of tobacco on three different occasions. The maximum sentence for this offence is imprisonment for 5 years.
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The sentence imposed by Arnott SC DCJ (as subsequently adjusted on 17 May 2016) was imprisonment for 20 months, commencing 23 July 2017 and expiring on 22 March 2019, with a single non-parole period to commence 23 January 2014 and to expire on 22 March 2018.
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The reason for the non-parole period being in that form was that the applicant was already serving a sentence imposed by the Court of Criminal Appeal (Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176) as follows:
In respect of count 1 a term of imprisonment for 4 years to commence 23 January 2014 and to expire 22 January 2018.
In respect of count 2 a term of imprisonment for…
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- AGLC
- Afiouny v The Queen [2017] NSWCCA 23
- Case
- [2017] NSWCCA 23
- Decision Date
CaseChat Overview and Summary
The court examined the appellant's sentence in light of the need to balance the need for deterrence and denunciation against the circumstances of the offender and the offence. The court noted that the non-parole period was the minimum period to be served. It held that although the appellant's conduct was serious, the sentence was not manifestly excessive. The court also found that the reasons provided for the non-parole period were adequate and that the parole period was sufficient to allow for proper supervision and rehabilitation.
As a result, the appeal was dismissed, and the original sentence upheld. The court concluded that the sentence was proportionate to the gravity of the offence and the offender's circumstances, and that it was not excessive or inadequate in any way. The appeal was dismissed, and the original sentence was affirmed.
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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