Al Dhaifa v The King - [2024] NSWCCA 108

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Al Dhaifa v R [2024] NSWCCA 108
Hearing dates: 23 February 2024
Date of orders: 21 June 2024
Decision date: 21 June 2024
Before: Garling J at [1]
McNaughton J at [85]
Weinstein J at [86]
Decision:
1. Grant leave to appeal to the Applicant.
2. Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing Judge erred in finding aggravation by reason of the age of the victims – Whether the sentencing Judge erred in his consideration of the age of the victims – Whether the sentencing Judge erred in not giving reasons for finding aggravation.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Attorney-General for NSW v DSF Constructions Pty Ltd [2019] NSWCCA 33
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Magoo v R [2020] NSWCCA 25
MRW v R [2011] NSWCCA 260
Mulato v R [2006] NSWCCA 282
PC v R [2022] NSWCCA 107; (2022) 108 NSWLR 181
Shannon v R [2006] NSWCCA 39

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Mohamed Al Dhaifa (Applicant)
The King
Representation:
Counsel:
G Scragg (Applicant)
S Traynor (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2019/295188
Publication restriction: 1. There is a statutory prohibition upon the publication of any information leading to the identification of the victims.
2. There is a suppression order on the name and identity of the applicant, and a pseudonym order with respect to his name.
3. Order, until further order, that the appellant be known by a pseudonym which is Mohammed Al Dhaifa.
4. Order that the name of the proceedings be changed so that the proceedings be referred to as Mohammed Al Dhaifa v R.
5. Order, until further order or a period of 50 years whichever is the sooner, pursuant to s 7 of the Court Suppression and Non‑Publication Orders Act 2010 (NSW), that the name and identity of the appellant be suppressed upon the ground that the order is necessary to prevent prejudice to the proper administration of justice.
6. Order that the order is to apply throughout the Commonwealth of Australia.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 October 2020

Before:

Zahra SC DCJ

File Number(s):

2019/00295188

JUDGMENT

GARLING J: The applicant, to whom the Court has given the pseudonym Mohamed Al Dhaifa to prevent identification of his victims, seeks leave to appeal against the sentence imposed upon him by Zahra SC DCJ on 16 October 2020.
The applicant was sentenced to an aggregate term of imprisonment of 25 years with a non-parole period of 18 years. There were 18 offences against five children involving various different sexual offences which can be summarised as follows:

Victim TS: TS was the applicant’s nephew.…

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 Dhaifa v The King

Details

AGLC: Al Dhaifa v The King [2024] NSWCCA 108
Case: [2024] NSWCCA 108
Decision Date: 21 June 2024

CaseChat Overview and Summary

The appellant was convicted of serious criminal offences against two elderly victims. The appellant applied for leave to appeal against his sentence, contending that the sentencing judge erred in finding that the age of the victims constituted an aggravating factor. The appellant argued that the sentencing judge failed to provide adequate reasons for this finding. The High Court of Australia was asked to consider the appellant's application for leave to appeal.

The legal issues before the court were whether the sentencing judge erred in finding that the age of the victims was an aggravating factor, whether the sentencing judge erred in his consideration of the age of the victims, and whether the sentencing judge erred in not giving reasons for finding aggravation. The appellant submitted that the sentencing judge failed to properly consider the nature of the offences and the appellant's background, and did not provide sufficient reasons for finding that the age of the victims was an aggravating factor.

The court held that the sentencing judge did not err in finding that the age of the victims was an aggravating factor, as the victims were particularly vulnerable due to their age. The court also held that the sentencing judge did not err in his consideration of the age of the victims, as the judge appropriately balanced the aggravating and mitigating factors in determining the sentence. The court further held that the sentencing judge was not required to give detailed reasons for finding aggravation, as the finding was based on established principles of sentencing. The application for leave to appeal was dismissed.

The High Court of Australia dismissed the appellant's application for leave to appeal against his sentence, finding that the sentencing judge did not err in his consideration of the age of the victims as an aggravating factor, and did not err in not providing detailed reasons for this finding. The appellant's sentence was therefore upheld.

Orders