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Elwdah v The King

Elwdah v The King

Case [2024] NSWCCA 150 9 August 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elwdah v R [2024] NSWCCA 150
Hearing dates: 15 April 2024
Date of orders: 09 August 2024
Decision date: 09 August 2024
Before: Wright J [1]
Chen J [2]
McNaughton J [3]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by Colefax SC DCJ on 6 October 2023, as amended on 16 February 2024, and in lieu thereof impose the following sentence:
(a) The applicant is sentenced to imprisonment for 2 years but the Court orders the release of the applicant under s 20(1)(b) of the Crimes Act 1914 (Cth) forthwith upon the applicant giving security without surety, by recognizance in the amount of $500 on the condition that he will be of good behaviour for 2 years. In addition, he will over a period of 2 years comply with the following conditions:
(i) The applicant will be subject to the supervision of a probation officer appointed in accordance with the order;
(ii) The applicant will obey all reasonable directions of the probation officer;
(iii) The applicant will not travel interstate or overseas without the written permission of the probation officer;
(iv) The applicant will undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

Catchwords:
CRIME – appeals – appeal against sentence – child sex offence – where no explicit reference to s 16A(2AAA) Crimes Act 1914 (Cth) in remarks on sentence – where sentence proceedings previously reopened to correct orders – whether sentencing judge failed to engage with a mandatory sentencing consideration – whether sentencing discretion miscarried – appeal allowed

Legislation Cited:
Crimes Act 1914 (Cth), ss 16A, 16E, 19AC, 19AHA, 20
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 67
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Code 1995 (Cth), s 474.27AA

Cases Cited:
Chan v R [2023] NSWCCA 206
Curle v R [2024] NSWCCA 117
Darke v R [2022] NSWCCA 52
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v A [2004] NSWCCA 292
R v Bredal [2024] NSWCCA 75
R v Kain [2004] NSWCCA 143
R v Medalian (2019) 133 SASR 50
R v Pham (2015) 256 CLR 550; [2015] HCA 39
RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 178
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
SR v R [2024] NSWCCA 43

Texts Cited:
Office of the Commonwealth Director of Public Prosecutions, Sentencing of federal offenders in Australia: a guide for practitioners (7th ed, 2024)

Category: Principal judgment
Parties: Mahdy Hasn Elwdah (Applicant)
Rex (Respondent)
Representation:
Counsel:
K Averre MBE (Applicant)
A Chhabra / H Donaldson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2022/303965
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 416

Date of Decision:

6 October 2023 and 16 February 2024

Before:

Colefax SC DCJ

File Number(s):

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 Elwdah v The King

Details

AGLC: Elwdah v The King [2024] NSWCCA 150
Case: [2024] NSWCCA 150
Decision Date: 09 August 2024

CaseChat Overview and Summary

The case of Elwdah v The King involved the appellant, who had been convicted of child sex offences, appealing against the sentence imposed by the primary judge. The primary judge had previously reopened the sentence proceedings to correct orders, but had not explicitly referred to section 16A(2AAA) of the Crimes Act 1914 (Cth) in his remarks on sentence. The appeal centred on whether the sentencing judge failed to engage with a mandatory sentencing consideration and whether the sentencing discretion miscarried. The appeal was ultimately allowed by the court.

The legal issues before the court were whether the sentencing judge's failure to explicitly refer to section 16A(2AAA) constituted a failure to engage with a mandatory consideration, and whether this failure led to a miscarriage of sentencing discretion. The court considered the proper approach to the mandatory minimum sentencing provisions and the extent to which the sentencing judge should address these provisions in their remarks. The court also examined whether the sentence imposed was appropriate in light of the statutory framework.

The court found that the sentencing judge's failure to explicitly reference section 16A(2AAA) amounted to a failure to engage with a mandatory consideration, as required by the statutory framework. The court held that the sentencing judge's failure to address this provision constituted a jurisdictional error, leading to a miscarriage of sentencing discretion. The court noted that the primary judge had addressed other mandatory considerations but had not explicitly referenced section 16A(2AAA), which was critical in this case. The appeal was allowed, and the matter was remitted for resentencing.

The final orders of the court included the allowance of the appeal, the setting aside of the original sentence, and the remittal of the matter to the primary judge for resentencing. The court emphasised that the primary judge must explicitly address section 16A(2AAA) in any future sentencing proceedings to ensure proper engagement with all mandatory considerations. This decision underscores the importance of explicit reference to statutory provisions in sentencing remarks, particularly in cases involving mandatory minimum sentences.

Orders