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Elshani v R

Elshani v R

Case [2015] NSWCCA 254 19 October 2015

Appeal

Sentencing

Mistaken Application of Law

Mistaken Application of Legislation

Re-sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Elshani v R [2015] NSWCCA 254
Hearing dates: 10 August 2015
Decision date: 19 October 2015
Before: Gleeson JA at [1]
Adams J at [9]
Beech-Jones J at [39]
Decision:
1. Leave to appeal is granted.

2. The non-parole period is quashed and, in lieu thereof, a non-parole period is imposed of 3 years and 3 months commencing on 1 November 2012 and ending on 31 January 2016.

3. In accordance with s 16F of the Crimes Act 1914 (Cth) the appellant’s solicitor is directed to explain to the appellant, in language likely to be readily understood by him, the purpose and consequences of fixing the non-parole period including, in particular, an explanation:

(a)   that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and

(b)   that, if a parole order is made, the order will be subject to conditions; and

(c)   that the parole order may be amended or revoked; and
(d)   of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.
Catchwords:
CRIMINAL LAW – appeal – sentencing – mistaken application of Crimes (Sentencing Procedure) Act 1999 (NSW) in sentencing for offence under s 302.3 of the Criminal Code Act 1995 (Cth) by primary judge – error in finding “special circumstances” and failing to explain sentence in accordance with s 16F(1) of the Crimes Act 1914 (Cth) indicative of mistaken application of NSW legislation
CRIMINAL LAW – appeal – re-sentencing pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) – application of s 16A(2)(p) of the Crimes Act 1914 (Cth) – probable effect of sentence on person’s family – whether only “exceptional hardship” on offender’s family can be taken into account upon sentencing
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth), Pt IB, Div 4, ss 16A(2), 16F(1), 19AB
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Code Act 1995 (Cth), s 302.3
Cases Cited: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
Bui v Director of Public Prosecutions for the Commonwealth of Australia [2012] HCA 1; 244 CLR 638
Director of Public Prosecutions (Cth) v Ip [2005] ACTCA 24
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Huynh v R [2015] NSWCCA 167
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Khoo v R [2013] NSWCCA 323
Markovic v The Queen [2010] VSCA 105; 200 A Crim R 510
MLP v R [2014] NSWCCA 183
Nguyen v The…

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 Elshani v R

Details

AGLC: Elshani v R [2015] NSWCCA 254
Case: [2015] NSWCCA 254
Decision Date: 19 October 2015

CaseChat Overview and Summary

The appeal against the sentence imposed on the applicant by the Supreme Court of New South Wales involved a dispute over the application of sentencing laws. The applicant, Elshani, was convicted of an offence under section 302.3 of the Criminal Code Act 1995 and sentenced by the primary judge. The applicant contested the sentencing process, asserting that the primary judge incorrectly applied the Crimes (Sentencing Procedure) Act 1999 (NSW) and erred in determining the existence of "special circumstances". Furthermore, it was argued that the sentence was not explained in accordance with section 16F(1) of the Crimes Act 1914 (Cth), indicative of an erroneous application of NSW legislation.

The central legal issues before the court were whether the primary judge had mistakenly applied the NSW sentencing act and whether the sentence was properly explained under the federal Crimes Act. Additionally, the court considered whether the primary judge correctly assessed the effect of the sentence on the offender's family, specifically if only "exceptional hardship" could be taken into account as per section 16A(2)(p) of the Crimes Act 1914 (Cth).

In determining the appeal, the court found that the primary judge had indeed erred in applying the NSW sentencing act instead of the Commonwealth Act. The court also found that the primary judge had failed to properly explain the sentence as required by section 16F(1) of the Crimes Act 1914 (Cth). Consequently, the court held that the sentence was unlawful and ordered the applicant to be re-sentenced in accordance with the federal legislation. The court clarified that when considering the impact of the sentence on the offender's family, factors beyond "exceptional hardship" could be taken into account.

The court ordered that the applicant be re-sentenced by the Supreme Court of New South Wales in accordance with the Crimes Act 1914 (Cth), ensuring that the sentence was properly explained and all relevant factors, including the effect on the offender's family, were appropriately considered.

Orders