Hraiki v R - [2019] NSWCCA 140

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hraiki v R [2019] NSWCCA 140
Hearing dates: 17 May 2019
Decision date: 28 June 2019
Before: Bathurst CJ at [1];
Hamill J at [2];
N Adams J at [19]
Decision:
Application for leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW – crimes of dishonesty – discount for assistance – assistance provided very late – police aware of matters subject to assistance – possibility applicant to be called to give evidence – whether 5% discount for future assistance sufficient – discretionary and evaluative judgment – no error established
Legislation Cited: Crimes (Sentencing procedure) Act 1999 (NSW), ss 23, 53A
Category: Principal judgment
Parties: Shadi Hraiki (Applicant)
Regina (Respondent)
Representation:
Counsel:
Y C Lin (Applicant)
K Jeffreys (Respondent)
Solicitors
BPH Legal (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/00074135
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 October 2018

Before:

Norrish QC DCJ

File Number(s):

2015/00074135

Judgment

BATHURST CJ: I agree with Hamill J.
HAMILL J: Shadi Hraiki seeks leave to appeal against the sentence imposed in the District Court by his Honour Judge Norrish QC on 18 October 2018. The offences to which the applicant had pleaded guilty and the sentences imposed on him were set out in a helpful schedule included in the applicant's submissions:

Item

Offence

Max. Penalty

NPP

Total Term of Sentence

1 (7)

Recklessly Deal with Proceeds of Crime, namely, $303,841.57

-

s. 193B(3) Crimes Act 1900

Imprisonment for 10 years

Imprisonment of 1 year 5 months; commencing 18 October 2018 and expiring 17 March 2020

2

(10)

Dishonestly obtain financial advantage by deception, namely an investment loan valued at $920,000.00 in the

name of Sasi Kumar

-

s.192E(1)(b) Crimes Act 1900

Imprisonment for 10 years

Imprisonment of 9 months; expiring on 17 January 2020

Imprisonment of 2 years and 3 months; commencing 18

April 2019 and expiring 17 July 2021

3

(17)

Recklessly deal with proceeds of crime, namely, $173,340.28.

-

s.193B(3) Crimes Act 1900

Imprisonment for 10 years

Imprisonment of 8 months; expiring on 17 March 2020

Imprisonment of 1 year 9 months; commencing 18 July 2019 and expiring 17 April 2021

4

(22)

Recklessly deal with proceeds of crime, namely, $99,057.61.

-

s.193B(3) Crimes Act 1900

Imprisonment for 10 years

Imprisonment of 8 months; expiring on 17 March 2020

Imprisonment of 1 year 9 months; commencing 18 July 2019 and expiring 17 April 2021

In sentencing for count 10, the Judge also took into account some matters on a Form 1.
As will be seen, the primary Judge did not impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 (NSW), preferring the transparency of imposing individual sentences and making them partially concurrent and partially cumulative. By virtue of the partial accumulation, the total effective sentence was one of 2 years and 9 months with a total effective non-parole period…

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 Hraiki v R

Details

AGLC: Hraiki v The Queen [2019] NSWCCA 140
Case: [2019] NSWCCA 140
Decision Date: 28 June 2019

CaseChat Overview and Summary

The High Court of Australia heard an appeal against a conviction and sentence by the applicant, Hraiki, in a case involving criminal dishonesty. The appeal focused on the discount provided to the applicant for her assistance with the investigation. The police were already aware of the matters subject to the applicant's assistance, and she was potentially going to be called to give evidence. The primary legal issue was whether a 5% discount for future assistance was sufficient, considering the discretionary and evaluative nature of the judgment. The court held that there was no established error in the decision to grant the discount.

The court examined the principles guiding the application of discounts for assistance in criminal cases, emphasising the importance of a fair and just outcome. It noted that the discount for assistance is a matter of judicial discretion, and the evaluation of the assistance provided must be based on the specific circumstances of each case. In this instance, the court found that the trial judge had carefully considered the applicant's late assistance, the potential impact on the investigation, and the possibility of the applicant being called as a witness. The court concluded that the trial judge's assessment of the assistance and the resulting discount was reasonable and did not demonstrate any error in judgment.

Consequently, the High Court dismissed the appeal, affirming the trial judge's decision to apply a 5% discount for the applicant's assistance. The court held that the trial judge's assessment of the assistance provided was well within the bounds of discretion and did not establish any error. The court further emphasised that the matter of discount for assistance is inherently evaluative and discretionary, leaving ample scope for the trial judge to make a judgment based on the specific circumstances of the case. The appeal was therefore unsuccessful, and the conviction and sentence remained intact.

Orders