Bathurst CJ at [1]; Hoeben CJ at CL at [282]; Fagan J at [283]
Decision:
(1) Extend the time for filing an application for leave to appeal to 1 May 2018.
(2) Grant the applicant leave to appeal.
(3) Dismiss the appeal.
(4) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), order that paragraphs [70]-[72], [239]-[240] and the last sentence of paragraph [243] of this judgment be suppressed until further order on the grounds contained in s 8(1)(c) of that Act.
(5) Order (4) is to apply throughout the Commonwealth.
Catchwords:
SENTENCING – Appeal against sentence – Powers of court – application for extension of time to apply for leave to appeal against sentence filed over nine years after sentence delivered – whether an extension of time should be granted
SENTENCING – Relevant factors on sentence – Co-offenders – Parity – applicant originally charged on indictment for conspiracy with other alleged co-offenders – applicant and another one of the alleged co-offenders later pleaded guilty to charges which did not allege conspiracy – whether applicant and the other person were co-offenders for the purpose of sentencing on those charges
SENTENCING – Appeal against sentence – Fresh or new evidence – applicant sought to rely upon evidence which was said to demonstrate error in the assessment of likely conditions of custody by sentencing judge – whether evidence admissible
[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.
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AGLC
Baladjam v R [2018] NSWCCA 304
Case
[2018] NSWCCA 304
Decision Date
CaseChat Overview and Summary
The case of Baladjam v R involved an appeal against a sentence handed down by the Supreme Court of New South Wales. The applicant, Baladjam, sought an extension of time to apply for leave to appeal against the sentence, which was filed over nine years after the sentence was delivered. The application for the extension of time was made on the basis of fresh or new evidence that purportedly demonstrated an error in the assessment of likely conditions of custody by the sentencing judge. Additionally, the applicant argued that he and another alleged co-offender were not co-offenders for the purpose of sentencing on the charges to which they pleaded guilty, as they were originally charged on indictment for conspiracy with other alleged co-offenders.
The legal issues that the court was required to decide included whether an extension of time should be granted to the applicant to apply for leave to appeal against the sentence, whether the applicant and another person were co-offenders for the purpose of sentencing on the charges to which they pleaded guilty, and whether the evidence relied upon by the applicant was admissible.
The court held that it would not grant the extension of time to the applicant to apply for leave to appeal against the sentence. The court found that the applicant had not demonstrated any exceptional circumstances that warranted an extension of time. The court also found that the applicant and the other person were co-offenders for the purpose of sentencing on the charges to which they pleaded guilty. The court held that the evidence relied upon by the applicant was not admissible as it was not fresh or new evidence, but rather evidence that was available at the time of the original sentencing hearing. The court held that the applicant's sentence was appropriate and did not require any amendment.
In conclusion, the court dismissed the application for an extension of time to apply for leave to appeal against the sentence, found that the applicant and another person were co-offenders for the purpose of sentencing, and held that the evidence relied upon by the applicant was not admissible. The sentence handed down by the Supreme Court of New South Wales was upheld.