Fahmy v The Queen - [2021] NSWCCA 112

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fahmy v R [2021] NSWCCA 112
Hearing dates: 19 May 2021
Date of orders: 4 June 2021
Decision date: 04 June 2021
Before: Garling J at [1]
Beech-Jones J at [2]
N Adams J at [49]
Decision:
(1) Application for extension of time to seek leave to appeal against sentence refused
(2) Leave to appeal against sentence refused

Catchwords:
SENTENCING – application for leave to appeal out of time – applicant seeks consideration of time spent in custody on other charges that were later withdrawn – time was considered by sentencing judge – Bugmy – tender of additional evidence to show dysfunctional family background – before sentencing judge applicant contended had strong family support – additional evidence inconsistent with case run before sentencing judge – tender of evidence rejected –leave refused

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995

Cases Cited:
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v R” (2013) 249 CLR 571; [2013] HCA 37
DAO (No 3) v R [2021] NSWCCA 103
Garland v R [2009] NSWCCA 217
House v R (1936) 55 CLR 401
Khoury v R [2011] NSWCCA 118
Korovou v R [2021] NSWCCA 28
Puan v R [2009] NSWCCA 194
R v Birks (1990) 19 NSWLR 677
R v Fordham (1997) 98 A Crim R 359
Raymond John Munro v Regina [2006] NSWCCA 350
Refaieh v R (2019) 272 A Crim R 245; [2018] NSWCCA 72

Category: Principal judgment
Parties: Amin Fahmy (Applicant)
Regina (Respondent)
Representation:
Counsel:
Self-represented (Applicant)
Ms S Traynor (Respondent)
Solicitors:
Self-represented (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/330887
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 August 2019

Before:

Whitford SC DCJ

File Number(s):

2017/330887

Judgment

GARLING J: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for an extension of time in which to seek leave to appeal against sentence and an application for that leave under s 5(1)(c) of the Criminal Appeal Act 1912.
Following a judge alone trial, on 5 July 2019, his Honour Judge Whitford SC, found the applicant guilty on an indictment that charged that he did, on 1 November 2017, do an act with the intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW).
On 28 August 2019, his Honour sentenced the applicant to a term of imprisonment consisting of a non‑parole period of 1 year and 3 months, backdated to commence on 28 May 2018, and expiring on 27 August 2019, with a balance of term of 9 months. Although the non‑parole period for that sentence expired on the day before it was imposed, the applicant remained in custody, bail refused, on other charges.
On 5 February 2021, the applicant was sentenced by his Honour Judge Weinstein SC in respect of a charge…

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 Fahmy v The Queen

Details

AGLC: Fahmy v The Queen [2021] NSWCCA 112
Case: [2021] NSWCCA 112
Decision Date: 04 June 2021

CaseChat Overview and Summary

Fahmy sought leave to appeal his sentence out of time, arguing that the time he spent in custody on other charges that were later withdrawn should have been considered by the sentencing judge. The case was heard by the High Court of Australia. The central issue before the court was whether the time Fahmy spent in custody on charges that were subsequently withdrawn should be taken into account in determining the length of his sentence for the current charges. Additionally, Fahmy sought to tender additional evidence to demonstrate a dysfunctional family background, despite having previously argued before the sentencing judge that he had strong family support.

The court found that the sentencing judge had already considered the time Fahmy spent in custody on the other charges and had taken it into account in determining his sentence. The court also rejected the tender of additional evidence, finding that it was inconsistent with the case that had been presented to the sentencing judge. The court held that Fahmy had not demonstrated that he had a strong chance of success on appeal or that there was some other compelling reason to grant leave to appeal out of time. Consequently, the application for leave to appeal was refused.

Orders