Al Am Ali v R - [2021] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Al Am Ali v R [2021] NSWCCA 281
Hearing dates: 19 November 2021
Date of orders: 19 November 2021
Decision date: 01 December 2021
Before: Beech-Jones CJ at CL at [1]
Davies J at [2]
Wilson J at [54]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – applicant pleaded guilty to possessing 1974 kilograms of tobacco knowing goods were imported with intent to defraud the revenue – one ground of appeal – whether his Honour failed to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 when imposing sentence of full-time imprisonment – where sentencing judge failed to engage with submission of applicant’s counsel that consideration should be given to ICO – ground of appeal made out – re-sentence – where sentence of imprisonment appropriate given applicant had significant role in organised criminal activity – whether sentence should be served by an ICO – where ICO not appropriate as applicant due to be released on recognizance in less than three months – no lesser sentence warranted

Legislation Cited:
Crimes Act 1914 (Cth) s 16A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 66, 69
Criminal Appeal Act 1912 (NSW), s 6(3)
Customs Act 1901 (Cth) s 233BABAD

Cases Cited:
Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246
Blanch v R [2019] NSWCCA 304
Mandranis v R [2021] NSWCCA 97
Mourtada v R [2021] NSWCCA 211
R v Edelbi [2021] NSWCCA 122
R v Pullen [2018] NSWCCA 264
Wany v DPP [2020] NSWCA 318

Texts Cited:
Nil

Category: Principal judgment
Parties: Ibrahim Al Am Ali (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Beaufils (Applicant)
D Jordan (Respondent)
Solicitors:
Abbas Jacobs Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2019/159038
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

9 April 2021

Before:

North DCJ

File Number(s):

2019/159038

Judgment

BEECH-JONES CJ AT CL: In joining the orders made on 19 November 2021 dismissing the appeal I was satisfied that no lesser sentence was warranted in law (Criminal Appeal Act 1912 (NSW), s 6(3)). I reached that state of satisfaction regardless of whether the consideration of whether to make an Intensive Correction Order in resentencing was determined having regard to the sentencing objectives in s 16A of the Crimes Act 1914 (Cth) or s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (see R v Pullen [2018] NSWCCA 264 at [86] to [89]). I otherwise agree with the reasons of Davies J.
DAVIES J: On 19 November 2021 at the conclusion of the hearing of the appeal, the Court made orders granting leave to appeal but dismissing the appeal. Reasons were to be provided later. These are my reasons for joining in the orders of the Court.
The applicant…

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 Al Am Ali v R

Details

AGLC: Al Am Ali v R [2021] NSWCCA 281
Case: [2021] NSWCCA 281
Decision Date: 01 December 2021

CaseChat Overview and Summary

The applicant, Al Am Ali, appealed against his sentence for possessing 1974 kilograms of tobacco, knowing the goods were imported with the intent to defraud the revenue. The case was heard in the Supreme Court of New South Wales. The primary issue for the court was whether the sentencing judge failed to consider the requirements of section 66 of the Crimes (Sentencing Procedure) Act 1999 when imposing a sentence of full-time imprisonment. Specifically, the court had to determine if the sentencing judge neglected to engage with the applicant’s counsel’s submission that consideration should be given to an intensive correction order (ICO).

The court found that the sentencing judge did not adequately address the submission regarding the potential application of an ICO. The sentencing judge failed to engage with the argument that an ICO might be a suitable alternative to imprisonment, given the applicant’s significant role in the organised criminal activity. The court concluded that this omission constituted a failure to consider the requirements of section 66 of the Act, which mandates that the court must consider available sentencing options and choose the most appropriate one. Consequently, the ground of appeal was upheld. However, the court determined that a sentence of imprisonment remained appropriate given the seriousness of the offence. Furthermore, as the applicant was due to be released on recognizance in less than three months, an ICO was deemed inappropriate, and no lesser sentence was warranted.

Orders