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Elahmad v The King

Elahmad v The King

Case [2024] NSWCCA 250 20 December 2024

Aggravated & Exemplary Damages

Sentencing

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elahmad v R [2024] NSWCCA 250
Hearing dates: 13 December 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Before: Davies J at [1]
Yehia J at [2]
R A Hulme AJ at [3]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeal against aggregate sentence – steal from the person and fraud offences – sentencing judge erred in considering conditional liberty in assessment of objective seriousness – submission made on resentencing that conflicted with concession in court below – applicant held to concession – no lesser sentence warranted

Legislation Cited:
Crimes Act 1900 (NSW), ss 94(b), 95(1), 192E(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Procedure Act 1986 (NSW), s 166
Drug Court Act 1998 (NSW), s 5A(1)
Road Transport (Vehicle Registration) Regulation 2017 (NSW)

Cases Cited:
Adams v R [2018] NSWCCA 139
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Boneyv R [2015] NSWCCA 291
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kliendienst v R [2020] NSWCCA 98
McCabe v R [2016] NSWCCA 7
Muldrockv The Queen (2011) 244 CLR 120; [2011] HCA 39
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
Rahman v R [2023] NSWCCA 148
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Ahmad Elahmad (Applicant)
Rex (Crown) (Respondent)
Representation:
Counsel:
S Goodwin (Applicant)
B Hatfield SC (Respondent)
Solicitors:
City Legal Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/141512; 2022/131850
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 September 2023

Before:

Wilson SC DCJ

File Number(s):

2022/141512; 2022/131850

HEADNOTE

[This headnote is not part of the judgment]

Leave to appeal was sought in respect of an aggregate sentence of 6 years’ imprisonment, with a non-parole period of 3 years, for 11 offences contrary to the Crimes Act 1900 (NSW): nine offences of steal from the person, one of aggravated steal from the person, and one of dishonestly obtaining property by deception.

The applicant’s sole ground of appeal was that the sentencing judge erred when assessing the objective seriousness of the conduct in taking into account that the offending occurred while the offender was on parole. In granting leave to appeal the Court held (R A Hulme AJ, Davies and Yehia JJ agreeing) that the sentencing judge erred in this respect. While a sentencing judge may consider whether an offender was on conditional liberty while offending as an aggravating factor in sentence, taking this factor into account in assessing objective seriousness is…

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 Elahmad v The King

Details

AGLC: Elahmad v The King [2024] NSWCCA 250
Case: [2024] NSWCCA 250
Decision Date: 20 December 2024

CaseChat Overview and Summary

In the case of Elahmad v The King, the appellant, Elahmad, sought to appeal against his aggregate sentence for offences of stealing from the person and fraud. The matter was heard in the High Court of Australia, which was required to determine whether the sentencing judge had erred in considering conditional liberty in assessing the objective seriousness of the crimes. Furthermore, it was necessary to address whether the submission made on resentencing conflicted with a concession made in the court below and, if so, whether Elahmad should be held to that concession. Ultimately, the High Court was tasked with deciding whether a lesser sentence was warranted.

The legal issues before the court involved the principles of sentencing, specifically whether the sentencing judge had correctly applied the law in considering the objective seriousness of the crimes and whether there had been any conflict between the submissions made in the resentencing application and the concession made in the court below. The appellant argued that the sentencing judge had erred by considering conditional liberty, which is not a relevant factor in assessing the objective seriousness of the crimes. Additionally, Elahmad contended that there was a conflict between the submissions made in the resentencing application and the concession made in the court below, and that he should not be held to that concession. The respondent, The King, maintained that the sentencing judge had not erred and that the appellant should be held to the concession made in the lower court.

The High Court found that the sentencing judge had indeed erred by considering conditional liberty in assessing the objective seriousness of the crimes. However, the court held that Elahmad was bound by the concession made in the court below, as there was a clear conflict between the submissions made in the resentencing application and the concession. The High Court emphasised that it is important for parties to be consistent in their submissions and that once a concession is made, it should be adhered to. Consequently, the court held that no lesser sentence was warranted, and the appeal was dismissed.

No further orders were made by the High Court.

Orders