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Ahmad v R

Ahmad v R

Case [2021] NSWCCA 30 12 March 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ahmad v R [2021] NSWCCA 30
Hearing dates: 24 February 2021
Decision date: 12 March 2021
Before: Leeming JA; Harrison J; Adamson J
Decision:
1. Grant leave to appeal, confined to ground 1 of the notice of appeal, and otherwise refuse leave to appeal.
2. Appeal allowed.
3. Quash the sentence imposed on 3 September 2020, and in lieu thereof sentence Mahmoud Ahmad to a total sentence of 6 years, comprising a non-parole period of 4 years and 6 months, commencing 20 March 2017 and expiring 19 September 2021, with a balance of term of 1 year and 6 months commencing 20 September 2021 and expiring 19 March 2023.
4. The first date on which the applicant will be eligible for parole will be 20 September 2021.
5. In accordance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), it is noted that the offence for which the applicant is sentenced is one to which the statute applies, with the possibility that the applicant will be detained in custody after the expiry of the sentence in accordance with that statute.

Catchwords:
CRIMINAL LAW – sentence – appeal against sentence – guilty plea to manslaughter – applicant sentenced on basis of agreed facts concerning applicant’s involvement in gunfight – no error in failing to give sufficient weight to remorse – no error in failing to find special circumstances – sentencing judge accepted offender had provided assistance by explaining his involvement in the gunfight but declined to discount sentence – reasons did not comply with Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 – offender resentenced

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 44

Cases Cited:
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
Buckley v R [2021] NSWCCA 6
Burrows v R [2017] NSWCCA 45
Casey v R [2015] NSWCCA 142
Cioban v R [2003] NSWCCA 304; 139 A Crim R 265
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
JBM v The Queen [2013] VSCA 69
Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73
R v AA [2017] NSWCCA 84
R v Ahmad [2020] NSWSC 1195
R v Burke [2002] NSWCCA 353
R v Ellis (1986) 6 NSWLR 603
R v Forbes [2011] NSWSC 1547
R v Lulham [2016] NSWCCA 287; 263 A Crim R 287
R v Nguyen [2002] NSWSC 536
R v Sara [2020] NSWCCA 119
Raad v R [2011] NSWCCA 138; 220 A Crim R 471
SZ v R [2007] NSWCCA 19; 168 A Crim R 249
Thach v R [2018] NSWCCA 252

Category: Principal judgment
Parties: Mahmoud Ahmad (Applicant)
Crown (Respondent)
Representation: Counsel:
D…

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 [2021] NSWCCA 30
Case: [2021] NSWCCA 30
Decision Date: 12 March 2021

CaseChat Overview and Summary

In the case of Ahmad v R, the applicant, who had pleaded guilty to manslaughter, appealed against his sentence. The sentence was based on agreed facts relating to the applicant’s involvement in a gunfight. The applicant argued that the sentencing judge had erred in failing to give sufficient weight to his remorse and in not finding special circumstances. The case was heard in the Court of Criminal Appeal.

The legal issues before the court were whether the sentencing judge had erred in failing to give sufficient weight to the applicant’s remorse, in not finding special circumstances, and in not discounting the sentence for the assistance provided by the applicant. The court also considered whether the sentencing judge’s reasons complied with the requirements of the Crimes (Sentencing Procedure) Act 1999 (NSW) s 23.

The court found that there was no error in the sentencing judge’s failure to give sufficient weight to the applicant’s remorse or in not finding special circumstances. The court also held that while the sentencing judge had accepted that the applicant had provided assistance by explaining his involvement in the gunfight, there was no error in not discounting the sentence for that assistance. The court concluded that the sentencing judge’s reasons did not comply with the requirements of the Act and therefore the applicant was resentenced. The applicant’s appeal against sentence was dismissed.

The court ordered that the applicant be resentenced in accordance with the court’s directions. The court noted that the sentencing judge had already taken into account the agreed facts and the assistance provided by the applicant in determining the sentence. The court held that the sentencing judge’s reasons did not adequately explain why the sentence was appropriate in all the circumstances. The court therefore directed that the applicant be resentenced by a different sentencing judge. The court also noted that the applicant’s guilty plea and the agreed facts were significant factors in determining the appropriate sentence.

Orders