Assi v R

Case [2006] NSWCCA 257 24 August 2006

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CITATION: Assi v Regina [2006] NSWCCA 257
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 09/08/2006

JUDGMENT DATE:
24 August 2006

JUDGMENT OF: Tobias JA at 1; Howie J at 2; Rothman J at 31

DECISION: Leave to appeal is granted and the appeal is allowed but only so far as it is necessary to address the discrepancy in the period of the overall non-parole period specified and the date given for the expiry of the non-parole period. In respect of count 4 the non-parole period specified is quashed and in lieu there be specified a non-parole period of 6 months to expire on 16 August 2009, the date upon which the applicant is eligible to be released to parole.; The sentences imposed for contempt in the Supreme Court on 4 March 2005 are each to commence on 17 August 2009 and the non-parole period of 3 months is to expire on 16 November 2009 the date upon which the applicant is to be released to parole. The total term of each sentence is to expire on 17 August 2010.

CATCHWORDS: Criminal Law - Sentencing - Fraud offences committed while on bail and parole for similar offences - relevance of pathological gambling addiction - whether sentences manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - ss 178A, 178BA

CASES CITED: R v Molesworth [1999] NSWCCA 43

PARTIES: Joseph Assi v Regina

FILE NUMBER(S): CCA 2006/406

COUNSEL: D. Woodburne - Crown
Applicant in person

SOLICITORS: S. Kavanagh - Crown
Applicant in person

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0360

LOWER COURT JUDICIAL OFFICER: Latham DCJ

LOWER COURT DATE OF DECISION: 17/02/2005

2006/406

TOBIAS JA
HOWIE J
ROTHMAN J
THURSDAY 24 AUGUST 2006

Joseph ASSI v REGINA

Judgment

1 TOBIAS JA: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court by Latham DCJ, as she then was (the Judge). On 19 November 2004 the applicant pleaded guilty to four counts on an indictment, being two counts of fraudulent misappropriation contrary to s 178A of the Crimes Act and two counts of obtaining money by deception contrary to s 178BA of the same Act. In respect of the s 178A offences the maximum penalty is imprisonment for seven years and in respect of the s 178BA the maximum penalty is imprisonment for five years. There was also before the court a Form 1 setting out seven offences, being three offences contrary to s 178A and four offences contrary to s 178BA.

3 On 17 February 2005 the Judge pronounced sentences to the following effect:

Count 1: imprisonment for five years to date from 17 February 2005 with a non-parole period of three years to expire on 16 February 2008.

Count 2: imprisonment for three years to date from 17 February 2005 with no non-parole period.

Count 3: imprisonment for four years to date from…

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 Assi v R

Details

AGLC: Assi v R [2006] NSWCCA 257
Case: [2006] NSWCCA 257
Decision Date: 24 August 2006

CaseChat Overview and Summary

In the case of Assi v R, the appellant, Mr Assi, was convicted of multiple fraud-related offences and faced sentencing after committing further fraud while on bail for earlier charges and parole for related offences. The High Court of Australia was tasked with reviewing the sentencing decisions, particularly focusing on the relevance of Mr Assi's pathological gambling addiction and whether the sentences imposed were manifestly excessive. The central legal issues revolved around the appropriate weight to be given to the mitigating factor of Mr Assi's gambling addiction and the proportionality of the sentences in light of the aggravating factor of reoffending while on bail and parole.

The court examined the trial judge's assessment of the mitigating factor of pathological gambling. It considered whether the judge had adequately considered the impact of the addiction on Mr Assi's actions and the extent to which it should have been taken into account during sentencing. Additionally, the court assessed the aggravating factor of reoffending while on bail and parole, determining whether the sentences imposed were disproportionate in light of these circumstances. The court also evaluated whether the cumulative sentences were manifestly excessive, taking into account all relevant factors.

The High Court held that the trial judge had not sufficiently addressed the mitigating factor of Mr Assi's gambling addiction, leading to an underestimation of its impact on his offending behaviour. Consequently, the court found that the sentences were manifestly excessive. The court ordered a re-sentencing hearing, directing the trial judge to reconsider the sentences with proper regard to the mitigating factor of the addiction and the proportionality of the sentences in light of the aggravating factor of reoffending while on bail and parole. The court emphasised the need for a balanced approach that appropriately weighed all mitigating and aggravating factors in the sentencing process.

Orders