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Ishaq v The King

Ishaq v The King

Case [2023] NSWCCA 178 21 July 2023

Appeal

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ishaq v R [2023] NSWCCA 178
Hearing dates: 12 April 2023
Date of orders: 21 July 2023
Decision date: 21 July 2023
Before: Adamson JA at [1]
McNaughton J at [2]
Sweeney J at [89]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeal – appeal against sentence – selling stolen goods on eBay using identity of another person – whether sentence imposed was manifestly excessive – Intensive Correction Order – sentence not manifestly excessive – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) ss 192E, 192J, 193B, 527C
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A
Criminal Appeal Act 1912 (NSW) s 5

Cases Cited:
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hraiki v R [2019] NSWCCA 140
Hughes v R [2018] NSWCCA 2
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Ke v R [2021] NSWCCA 177
Kerr v R [2016] NSWCCA 218
Kresovic v R [2018] NSWCCA 37
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509
R v Zamagias [2002] NSWCCA 17
Shavali v R [2022] NSWCCA 178
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Simon Ishaq (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Moutasallem (Applicant)
M Swift (Respondent)
Solicitors:
Millennium Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/38306
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

20 September 2021

Before:

Hanley SC DCJ

File Number(s):

2019/38306

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between 7 September 2018 and 5 February 2019, Mr Simon Ishaq (the applicant) sold stolen goods over the Internet via eBay and other online platforms using the identity of another person, reckless as to those goods being stolen. The applicant was arrested on 4 February 2019.

On 19 May 2021, the applicant pleaded guilty to three offences, those being one count of deal with identification information (contrary to s 192J of the Crimes Act 1900 (NSW)) and two counts of recklessly deal with proceeds of crime (contrary to s 193B(3) of the Crimes Act). Two further offences were dealt with on a Form 1.

On 20 September 2021, the applicant was sentenced by Judge Hanley SC (the sentencing judge) at Parramatta District Court. He received an aggregate sentence of 3 years’ imprisonment to be served by way of an Intensive Correction Order (ICO

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 Ishaq v The King

Details

AGLC: Ishaq v The King [2023] NSWCCA 178
Case: [2023] NSWCCA 178
Decision Date: 21 July 2023

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Ishaq, against the sentence imposed by the lower court. Ishaq was found guilty of engaging in criminal activity involving the sale of stolen goods on eBay, using the identity of another person. The primary issue before the court was whether the sentence imposed by the lower court was manifestly excessive. The appellant argued that the sentence was too harsh given the circumstances, while the respondent maintained that the sentence was appropriate and just. The court had to determine whether the punishment was disproportionate to the crime committed.

The court considered various factors in determining the appropriate sentence, including the nature of the offence, the appellant's criminal history, and the impact of the crime on the victims. The court noted that the appellant's actions were premeditated and involved the use of deceit, which resulted in significant financial loss for the victims. The court also took into account the appellant's previous criminal record, which included similar offences. The court found that the sentence imposed, which included an Intensive Correction Order, was not manifestly excessive and was proportionate to the gravity of the offence.

In reaching its decision, the court emphasised the importance of deterrence and rehabilitation in sentencing. The court acknowledged that the appellant's actions had caused harm to the victims and that a strong message needed to be sent to deter similar conduct in the future. However, the court also recognised the potential for rehabilitation and the importance of providing the appellant with an opportunity to reform. The court concluded that the sentence imposed achieved these objectives and was therefore appropriate.

The appeal was dismissed, and the sentence imposed by the lower court was upheld. The court found that the sentence was proportionate to the offence and that the appellant had not demonstrated that the sentence was manifestly excessive. The court also noted that the appellant had the right to appeal the conviction itself if they wished to challenge the findings of fact or law.

Orders