Ahmad v R - [2022] NSWCCA 144

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ahmad v R [2022] NSWCCA 144
Hearing dates: 8 June 2022
Date of orders: 29 June 2022
Decision date: 29 June 2022
Before: Meagher JA at [1];
Mitchelmore JA at [2];
Bellew J at [35]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal against sentence – whether sentencing judge took into account an irrelevant factor – view expressed during proceedings on sentence as to availability of intensive correction order – exchange did not form part of reasons
CRIMINAL LAW – appeal against sentence – reliance on applicant being on conditional liberty at time of offending as aggravating factor – whether revocation of earlier parole order with effect from date before offending conduct altered offender’s status in the community before revocation order was made – construction of Crimes (Sentencing Procedure) Act 1999 (NSW), s 171(4)
CRIMINAL LAW – appeal against sentence –obligation to consider an intensive correction order – intensive correction order not pressed for by Counsel before sentencing judge

Legislation Cited:
Crimes Act 1900 (NSW), ss 154F, 154A(1)(a), 117
Crimes (Administration of Sentences) Act 1999 (NSW), s 171
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 66

Cases Cited:
Blanch v R [2019] NSWCCA 304
Dang v R [2014] NSWCCA 47
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Mohindra v R [2020] NSWCCA 340
Morrison v R [2009] NSWCCA 211; (2009) 197 A Crim R 103

Category: Principal judgment
Parties: Thayer Ahmad (Applicant)
Regina (Crown)
Representation:
Counsel:
JJ Semaan (Sol) (Applicant)
M Millward (Crown)
Solicitors:
Chidiac Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2021/54335
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

08 December 2021

Before:

Ellis DCJ

File Number(s):

2021/54335

HEADNOTE

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

The applicant sought leave to appeal from a sentence imposed on him in the District Court following pleas of guilty to the following counts:

(1)   steal motor vehicle (s 154F of the Crimes Act 1900 (NSW));
(2)   take and drive conveyance without the consent of the owner (s 154A(1)(a) of the Crimes Act); and
(3)   larceny (s 117 of the Crimes Act).

The applicant was sentenced to imprisonment for a period of 2 years and 3 months, with a non-parole period of 12 months. The sentence was backdated to commence on 25 August 2021, meaning that the non-parole period expires on 24 August 2022. He sought leave to appeal on the following grounds (Ground 3 was not pressed at the hearing):

(1) His Honour erred by taking into account an irrelevant factor during the sentencing exercise.
(2) His Honour erred by finding that the applicant was on conditional liberty at the time of the offence/s and erred by finding it was an aggravating factor.
(4) His Honour erred by not considering section…

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 Ahmad v R

Details

AGLC: Ahmad v R [2022] NSWCCA 144
Case: [2022] NSWCCA 144
Decision Date: 29 June 2022

CaseChat Overview and Summary

In Ahmad v R, the respondent appealed against his sentence, contending that the sentencing judge had taken into account an irrelevant factor when imposing the sentence. The matter was heard in the New South Wales Court of Criminal Appeal. The respondent argued that the sentencing judge had given undue weight to the availability of an intensive correction order as a sentencing option, despite the fact that neither party had raised this as a possibility before the judge. The respondent also claimed that the judge had erred in considering his conditional liberty status at the time of the offending as an aggravating factor, as this status had been revoked prior to the offence.

The court needed to determine whether the sentencing judge had indeed considered an irrelevant factor in imposing the sentence, and whether the respondent's status as being on conditional liberty at the time of the offending was properly taken into account. The court also needed to examine whether the sentencing judge was required to consider an intensive correction order as a sentencing option, despite the fact that neither party had raised this as a possibility.

The court found that the sentencing judge had not taken into account an irrelevant factor when imposing the sentence, as the exchange between the judge and counsel regarding the availability of an intensive correction order did not form part of the reasons for sentence. The court also found that the respondent's status as being on conditional liberty at the time of the offending was properly taken into account, as the revocation of the earlier parole order with effect from a date before the offending conduct was not sufficient to alter the respondent's status in the community before the revocation order was made. Finally, the court found that the sentencing judge was not obliged to consider an intensive correction order as a sentencing option, as neither party had pressed for this option before the judge. The appeal against sentence was dismissed.

Orders