Elsayed v The Queen

The applicant, Elsayed, was convicted of robbery and recklessly causing injury while committing an indictable offence. Additionally, it was found that he committed the crime while on bail. Although threats to kill were made, they were not charged in the indictment. Elsayed pleaded guilty and was sentenced to two years and six months’ imprisonment with a non-parole period of 19 months. The applicant sought to appeal the sentence on the grounds that the sentencing judge made findings without the prosecution inviting him to do so, which allegedly denied him procedural fairness. Furthermore, the applicant argued that the sentencing judge should not have considered the uncharged threats to kill as an aggravating circumstance.

The court considered whether the sentencing judge erred by making findings without the prosecution’s invitation, and whether this denied the applicant procedural fairness. The court also considered whether the sentencing judge was correct in taking the uncharged threats to kill into account as an aggravating circumstance. The court referred to the decision in Newman v Turnbull, which stated that a sentencing judge is not limited to the matters raised by the prosecution and can consider any matter that might properly be regarded as relevant to the sentence. The court held that the sentencing judge did not err in making findings and that the applicant was not denied procedural fairness. The court also held that the sentencing judge was correct in considering the threats to kill as an aggravating circumstance.

The court concluded that the sentencing judge did not err in making findings without the prosecution’s invitation, nor did the applicant suffer a denial of procedural fairness. The court also concluded that the sentencing judge was correct in taking the threats to kill into account as an aggravating circumstance. The applicant’s application for leave to appeal against sentence was refused.