Assaf v Regina - [2007] NSWCCA 122

New South Wales
Court of Criminal Appeal

CITATION: Assaf v Regina [2007] NSWCCA 122

HEARING DATE(S): 12 March 2007

JUDGMENT DATE:
16 May 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hislop J at 4

DECISION: (1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS: Criminal Law - Sentence - Appeal based on events subsequent to sentence. - Review of sentence a matter for executive government not court.

LEGISLATION CITED: Crimes Act 1900 - ss 59(2), 178BA(1)
Crimes (Sentencing Procedure) Act 1999 - ss 9, 66(1)(b), 21A

CASES CITED: R v Ashton (2002) 137 A Crim R 73
R v Ehrenburg(NSWCCA, unreported, 14 December 1990)
R v Mioduszewski (NSWCCA, unreported 28 May 2004)
R v Munday (1981) 2 NSWLR 177

PARTIES: Applicant - Bakos Assaf
Respondent - Regina

FILE NUMBER(S): CCA 2005/1104

COUNSEL: Applicant - Mr J. Punch
Respondent - Mr P. Ingram

SOLICITORS: Applicant - Raphael & Associates
Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0043

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 21 April 2005

- 1 -

2005/1104

McCLELLAN CJ at CL
HULME J
HISLOP J

16 May 2007

Bakos ASSAF v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hislop J.

2 HULME J: I agree with the orders proposed by Hislop J and with his Honour’s reasons. I would add the following.

3 The material before the Court persuades me that a combination of his sentence and the psychiatric condition which has supervened since, means that in consequence of his offence the Applicant has suffered far, far more than any punishment his offence deserved. The case is one which merits serious consideration by the executive government pursuant to the powers referred to in R v Munday (1981) 2 NSWLR 177 at 178 and, following the dismissal of this appeal, urgent such attention.

4 HISLOP J: The applicant was charged on indictment on the following counts:

Count (1) attempt to obtain money by deception contrary to the Crimes Act 1900 s178BA(1). The maximum penalty for such an offence is imprisonment for 5 years when dealt with on indictment or 2 years if dealt with summarily.

Crimes Act

5 The applicant pleaded guilty to each count and on 21 April 2005 was sentenced in the District Court by Judge Nield. As to the first count his Honour deferred passing sentence conditionally upon the applicant entering into a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) to be of good behaviour for a period of 12 months. As to the second count his Honour sentenced the applicant to imprisonment for 1 year and 6 months. He fixed a non-parole…

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 Assaf v Regina

Details

AGLC: Assaf v Regina [2007] NSWCCA 122
Case: [2007] NSWCCA 122
Decision Date: 16 May 2007

CaseChat Overview and Summary

The appeal in Assaf v Regina concerns the sentencing of the appellant, who was convicted of criminal offences and sentenced by the lower court. The appellant sought to have his sentence reviewed by the higher court, arguing that the sentencing was influenced by events that occurred subsequent to the imposition of the sentence. The appeal was heard by the High Court of Australia, which had to determine the appropriate legal principles governing the review of sentences in light of subsequent events.

The central legal issue before the court was whether a court has the authority to review a sentence in light of events that occur after the sentence is handed down. The appellant argued that the subsequent events, which included the death of a co-offender, warranted a reconsideration of his sentence. The court needed to determine the extent to which post-sentencing events could influence the legality or fairness of the original sentence. Additionally, the court had to examine the separation of powers doctrine, considering whether the review of a sentence following such events was within the judicial domain or a matter better left to the executive branch.

The High Court of Australia held that the review of a sentence in light of subsequent events is not within the purview of the courts. The court emphasised that the authority to review or alter a sentence lies with the executive branch, typically through mechanisms such as parole boards or the prerogative of mercy. The court underscored that the judiciary's role is to ensure that the sentence is legally sound at the time it is imposed, and post-sentencing events do not alter this principle. Consequently, the court dismissed the appeal, affirming that any review or adjustment of the sentence based on subsequent events is a matter for the executive government.

The final orders of the court were to dismiss the appellant's appeal against his sentence, with no orders for costs. The court's decision reinforces the principle that the judiciary's role in sentencing is limited to ensuring that the sentence is imposed according to the law, without interference from post-sentencing developments.

Orders