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New South Wales |
Case Name: | EL-AFCHAL v R |
Medium Neutral Citation: | [2015] NSWCCA 112 |
Hearing Date(s): | 20 April 2015 |
Decision Date: | 25 May 2015 |
Before: | Hoeben CJ at CL at [1]; |
Decision: | (1) The applicant be granted leave to amend the Notice of Appeal in accordance with the amended Notice of Appeal dated 18 May 2015 to include Ground 2. |
Catchwords: | CRIMINAL LAW – appeal against sentence – whether the sentencing judge erred in his consideration of the evidence regarding applicant’s rehabilitation and delay between arrest and sentence –delay between arrest and sentence on the subject charges in part attributable to the applicant’s offending in Queensland and subsequent proceedings – relating thereto – sentencing judge took delay and rehabilitation into account as interrelated matters – delay and rehabilitation was taken into account and sentence reduced accordingly – sentencing judge found that the applicant had achieved some progress towards rehabilitation – whether the sentencing judge erred by not finding ‘substantial’ progress towards rehabilitation – the sentencing judge made a factual error as to the period over which the application’s progress towards rehabilitation took place – this did not give rise to error – appeal dismissed |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 |
Cases Cited: | House v The King (1936) 55 CLR 499 |
Category: | Principal judgment |
Parties: | Housam El Afchal (Applicant) |
Representation: | Counsel: |
File Number(s): | 2008/90705 |
Decision under appeal: | |
Court or Tribunal: | District Court |
Date of Decision: | 21 November 2013 |
Before: | Colefax J |
File Number(s): | 2008/90705 |
JUDGMENT
HOEBEN CJ at CL: I agree with Hall J.
HALL J: The applicant, Housam El-Afchal, seeks leave to appeal against an aggregate sentence imposed on him by his Honour Judge Colefax SC in the District Court, on 21 November 2013 in respect of three offences, namely:
(1)Receiving, contrary to s 188(1)(a) of the Crimes Act 1900. The maximum penalty for such an offence is 12 years imprisonment. There is no prescribed standard non-parole for such an offence.
(2)Knowingly facilitating an organised car rebirthing activity…
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- El-Afchal v The Queen [2015] NSWCCA 112
- Case
- [2015] NSWCCA 112
- Decision Date
CaseChat Overview and Summary
The court examined whether the sentencing judge's consideration of the delay and rehabilitation was correct. The court noted that the judge had appropriately taken these factors into account and reduced the sentence accordingly. The court also addressed the argument that the judge should have found 'substantial' progress towards rehabilitation. The court held that the sentencing judge's finding of some progress towards rehabilitation was sufficient, and the requirement for ‘substantial’ progress was not necessary. Regarding the factual error, the court found that the error did not amount to a material error that affected the sentence. The court concluded that the sentencing judge's consideration of the evidence was sound and that the appeal was without merit. The appeal was dismissed, and the sentence was affirmed. The court also amended the sentence to accurately reflect the length of pre-sentence custody.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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