Assie v R (Cth) - [2020] NSWCCA 249

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Assie v R (Cth) [2020] NSWCCA 249
Hearing dates: 10 August 2020
Date of orders: 2 October 2020
Decision date: 02 October 2020
Before: Payne JA at [1]
Walton J at [2]
Fullerton J at [3]
Decision:
1. Leave to advance the first ground of appeal is refused.
2. Leave to advance the third ground of appeal is refused.
3. Leave to appeal is refused.
4. The appeal is dismissed.

Catchwords:
CRIME - Appeals - Appeal against sentence - Application for leave to appeal - Multiple offences - Aggregate sentences - One count of conspiring with four others to dishonestly cause a loss to the Commonwealth - One count of dealing with money suspected of being proceeds of crime - Denial of procedural fairness - Manifest excess

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Ng v R (2011) 214 A Crim R 191; [2011] NSWCCA 227
Weir v R [2011] NSWCCA 123

Category: Principal judgment
Parties: Rebecca Assie (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
G Wright (Crown)
Solicitors:
Katsoolis & Co (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2017/247906
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

6 September 2019

Before:

Turnbull SC DCJ

File Number(s):

2017/247906

Judgment

PAYNE JA: I agree with Fullerton J.
WALTON J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal an aggregate sentence imposed in the District Court on 6 September 2019 following her pleas of guilty in that court on 27 March 2019 to one count of conspiring with four other persons with the intention of dishonestly causing a loss to the Commonwealth, contrary to s 135.4(3) of the Criminal Code Act 1995 (Cth) (“the conspiracy count”), and one count of dealing with money in excess of $100,000 reasonably suspected of being the proceeds of crime, contrary to s 400.9(1) of the Criminal Code Act (“the proceeds of crime offence”).
The conspiracy count attracted a maximum of 10 years’ imprisonment and/or 600 penalty units. The proceeds of crime offence attracted a maximum of 3 years’ imprisonment and/or 180 penalty units.
After allowing 10 percent for the pleas of guilty, the sentencing judge indicated a sentence of imprisonment of 5 years for the conspiracy count and 9 months’ imprisonment for the proceeds of crime offence. An aggregate sentence of 5 years’ imprisonment was imposed, commencing on the date of sentence and expiring on 5 September 2024, with a non-parole period of 3 years and 3 months expiring on 5 December 2022.
The applicant’s notice of appeal specified the following three grounds:

The sentencing proceedings miscarried as a result of a denial of procedural fairness.

His Honour did not affect [sic] to the considerations relevant to s 16 of the Crimes Act.

His Honour imposed a sentence that…

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 Assie v R (Cth)

Details

AGLC: Assie v R (Cth) [2020] NSWCCA 249
Case: [2020] NSWCCA 249
Decision Date: 02 October 2020

CaseChat Overview and Summary

The appellant was convicted of multiple offences and sentenced to a total of 16 years' imprisonment. The appellant appealed against the sentence, arguing that it was manifestly excessive and that he was denied procedural fairness. The appeal was brought before the High Court of Australia, which had to decide on the application for leave to appeal and the merits of the appeal.

The central legal issues revolved around the severity of the sentence and whether it was procedurally unfair. The appellant contended that the aggregate sentence was manifestly excessive, meaning it was grossly disproportionate to the nature and circumstances of the offences. Additionally, the appellant claimed that he was denied procedural fairness due to errors in the calculation and aggregation of the sentences. The court had to consider whether the trial judge erred in these respects and if the sentence was justified.

The High Court of Australia found that the trial judge did not commit any errors in calculating or aggregating the sentences, and therefore the appellant's claim of procedural unfairness was without merit. The court further held that the sentence, while severe, was not manifestly excessive given the nature and circumstances of the offences. The court considered the appellant's culpability, the need for deterrence, and the cumulative impact of the offences on the community. The appeal was dismissed, and the original sentence was upheld.

In light of the dismissal of the appeal, the High Court of Australia made no orders regarding the sentence. The appellant's conviction and sentence remain as determined by the trial judge.

Orders