Dagher v The Queen - [2017] NSWCCA 258

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dagher v R [2017] NSWCCA 258
Hearing dates: 11 October 2017
Decision date: 27 October 2017
Before: Leeming JA at [1];
Johnson J at [2];
Adamson J at [3]
Decision:
(1) Leave to appeal granted.

(2) Appeal allowed.

(3) In lieu of the sentence imposed by Delaney ADCJ on 22 May 2017, impose a sentence of 2 years’ imprisonment commencing on 22 May 2017.

(4) Direct that the applicant be released after serving 1 year, on 21 May 2018 on recognisance to be of good behaviour for 1 year, upon her giving self-surety of $500.
(5) Note, pursuant to s 16AC of the Crimes Act 2014 (Cth), that the sentence that would have been imposed but for the applicant’s promise of future assistance, would have been a sentence of 2 years and 4 months’ imprisonment with a direction that the applicant be released on 21 July 2018 on recognisance after serving 1 year and 2 months’ imprisonment, upon her giving self-surety of $500 to be of good behaviour for 1 year and 2 months.
Catchwords:
CRIMINAL LAW – sentencing – effect of failure to comply with s 16AC of the Crimes Act 1914 (Cth) – failure to specify what sentence would have been imposed but for promise of future assistance – need for re-sentence even though new sentence neither lesser nor greater than sentence imposed in order to comply with s 16AC
ADVOCACY – importance of providing sentencing judge with assistance as to applicable legislative provisions in order to ensure that sentence imposed complies with the law
Legislation Cited: Crimes Act 1914 (Cth), ss 16A,16AC, 17A, 20
Criminal Code Act 1995 (Cth), s 134.2
Criminal Appeal Act 1912 (NSW), ss 6, 12
Crimes (Sentencing Procedure) Act 1999 (NSW)
Judiciary Act 1903 (Cth), s 68
Legal Profession Uniform Conduct (Barristers) Rules 2015, r 95
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 29
Cases Cited: Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
R v Annecchini (Court of Criminal Appeal (NSW), Gleeson CJ, Allen and James JJ, 24 April 1996, unrep)
R v Gallagher (1991) 23 NSWLR 220
R v Hawkins (1989) 45 A Crim R 430
R v Whitney (Court of Criminal Appeal (NSW), Gleeson CJ, Cole JA and Newman J, 6 November 1997, unrep)
Category: Principal judgment
Parties: Farah Dagher (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
J Paingakulam/M Baroni (Respondent)
Solicitors:
Hanna Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2016/52676
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

22 May 2017

Before:

Delaney ADCJ

File Number(s):

2016/52676

Judgment

LEEMING JA: I agree with Adamson J.
JOHNSON J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against a sentence imposed…

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 Dagher v The Queen

Details

AGLC: Dagher v The Queen [2017] NSWCCA 258
Case: [2017] NSWCCA 258
Decision Date: 27 October 2017

CaseChat Overview and Summary

In the case of Dagher v The Queen, the respondent, who had been convicted of a serious criminal offence, appealed against the sentence imposed by the lower court. The primary legal issue before the court was whether the failure to comply with section 16AC of the Crimes Act 1914 (Cth) necessitated a re-sentencing, even if the new sentence was neither lesser nor greater than the sentence initially imposed. This section of the Act requires the court to specify what sentence would have been imposed but for the promise of future assistance, and the lower court had not done so. The appellant argued that this failure rendered the sentence unlawful, necessitating a re-sentencing to ensure compliance with the statutory requirement.

The court considered the importance of adhering to legislative provisions during sentencing, especially in ensuring that the sentence imposed was lawful and justifiable. The appellant's counsel highlighted the necessity for the sentencing judge to be provided with guidance on applicable legal provisions to avoid any potential legal infirmities. The court recognised that while the new sentence might not be materially different, the failure to comply with section 16AC meant that the sentence was not entirely compliant with the statutory requirement, thus necessitating a re-sentencing. The court acknowledged the significance of this procedural compliance in upholding the integrity of the judicial process.

In conclusion, the court ruled that despite the new sentence being neither lesser nor greater than the original, the failure to comply with section 16AC of the Crimes Act 1914 (Cth) required a re-sentencing. The court emphasised the importance of ensuring that sentencing judges are fully informed of the applicable legal provisions to avoid any potential legal issues. The decision underscores the necessity of strict compliance with statutory requirements to maintain the legitimacy of the judicial process. The final orders included a re-sentencing of the respondent to ensure full compliance with the legislative provisions.

Orders