El-Afchal v The Queen - [2015] NSWCCA 112

Court of Criminal Appeal
Supreme Court

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]; Hall J at [2]; R A Hulme J at [73]
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. (2) The application for leave to appeal be granted. (3) The aggregate sentence imposed by the District Court on 21 November 2013 be amended so that the non-parole period of the sentence is taken to have commenced on 4 August 2013 and is to expire on 3 August 2015. The balance of term of 2 years is to commence on 4 August 2015 and is to expire on 3 August 2017. (4) The appeal be otherwise dismissed.
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 CRIMINAL LAW – appeal against sentence – incorrect amount of pre-sentence custody taken into account – sentence amended to accurately reflect length of pre-sentence custody
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Weapons Prohibition Act 1998
Cases Cited:	House v The King (1936) 55 CLR 499 Kentwell v R [2014] HCA 37; (2014) 313 ALR 451 R v Tannous; R v Fahda; R v Dib [2012] NSWCCA 243
Category:	Principal judgment
Parties:	Housam El Afchal (Applicant) Regina (Crown)
Representation:	Counsel: D Barrow (Applicant) K McKay (Crown) Solicitors: William O’Brien & Ross Hudson Solicitors (Applicant) Solicitor for Public Prosecutions (Crown)
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…

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 El-Afchal v The Queen

Details

AGLC: El-Afchal v The Queen [2015] NSWCCA 112
Case: [2015] NSWCCA 112
Decision Date: 25 May 2015

CaseChat Overview and Summary

In the matter of El-Afchal v The Queen, the appellant, El-Afchal, appealed against the sentence imposed by the sentencing judge. The central issues in this appeal were whether the sentencing judge had erred in his consideration of the evidence regarding the appellant's rehabilitation and the delay between arrest and sentencing. The delay was partly due to the appellant's separate offending and proceedings in Queensland. The sentencing judge had considered the delay and rehabilitation as interrelated matters and reduced the sentence accordingly. The judge found that the appellant had achieved some progress towards rehabilitation, but the appellant argued that the judge should have found ‘substantial’ progress. The appellant also contended that the sentencing judge had made a factual error in determining the period over which the appellant's progress towards rehabilitation occurred.

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