(3) The aggregate sentences passed in the District Court are confirmed but, in relation to the sentence for the State offences (being counts 4-9 inclusive), is directed to commence on 24 February 2024. The non-parole period will expire on 23 February 2025; the sentence expires on 23 May 2026.
Catchwords:
CRIME – appeals – appeals against sentence – State and Commonwealth fraud-related offences – alleged failure to consider objective seriousness of count 3 – alleged failure to provide adequate reasons for indicative sentence for count 3 – alleged errors established – sentencing judge applied erroneous discount to indicative sentences – sentencing discretion re-exercised – no lesser sentence warranted in law – sentence varied to account for pre-sentence custody – leave to appeal allowed – appeal allowed
Counsel: J Glissan KC / A Moutasallem (Applicant) S Flood / D Mulligan (Respondent)
Solicitors: Millennium Lawyers (Applicant) Solicitor for Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):
2021/00040089
Publication restriction:
Nil
Decision under…
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.
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Details
AGLC
Baydoun v The King [2024] NSWCCA 65
Case
[2024] NSWCCA 65
Decision Date
CaseChat Overview and Summary
In the High Court of Australia, Baydoun appealed against his conviction and sentence for various fraud-related offences under both state and Commonwealth legislation. The appellant was convicted of multiple counts of fraud and other related offences, and the primary issue on appeal was the sentence imposed for count 3 of the indictment. The appellant argued that the sentencing judge had failed to adequately consider the objective seriousness of the offence, and that the reasons provided for the indicative sentence were insufficient. Additionally, it was contended that the sentencing judge had applied an erroneous discount to the indicative sentences.
The court examined the sentencing principles and the process undertaken by the sentencing judge. It found that while the sentencing judge had applied an erroneous discount, this did not necessarily establish that the sentence was incorrect. The court further held that even if the errors were established, the exercise of sentencing discretion did not result in a sentence that was unwarranted in law. The court concluded that the overall sentence, including the time spent in pre-sentence custody, was appropriate and did not warrant a lesser sentence. The appeal was allowed on the basis that the sentence for count 3 should be varied to account for the time spent in pre-sentence custody. Leave to appeal was granted, and the appeal was ultimately allowed with the sentence being varied accordingly.