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Marai v The King

Marai v The King

Case [2023] NSWCCA 224 5 September 2023

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Marai v R [2023] NSWCCA 224
Hearing dates: 11 August 2023
Date of orders: 05 September 2023
Decision date: 05 September 2023
Before: Kirk JA at [1]
Fagan J at [2]
Sweeney J at [21]
Decision:
1. Grant leave to appeal
2. Allow the appeal
3. Set aside the sentence imposed in the District Court
4. Sentence the applicant to imprisonment for 3 years, commencing on 7 January 2022. He is to be released pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) after serving 1 year and 8 months imprisonment on 6 September 2023.

Catchwords:
CRIME — Appeals — Appeal against sentence — Backdating commencement of sentence — Taking into account immigration detention — Obligation to give reasons

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:
Alimudin v McCarthy; Nurdin v Bravos (2008) 23 NTLR 102; [2008] NTCA 7
Glynn Kaderavek v R [2018] NSWCCA 92
Islam v The Queen [2014] ACTCA 2
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Parhizkar v R [2014] NSWCCA 240
R v Cheraghi [2020] NSWCCA 70
R v Dadash [2012] NSWSC 1511
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Refaieh v R [2018] NSWCCA 72
Sahhitanandan v The Queen [2019] VSCA 115
Taylor v R [2020] NSWCCA 46
Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33
Underwood (a Pseudonym) v The Queen [No 2] [2018] VSCA 87

Texts Cited:
Nil

Category: Principal judgment
Parties: Freddy Marai (Applicant)
Rex (Respondent)
Representation:
Counsel:
R Rodger (Applicant)
D Jordan (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/235174
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

6 October 2022

Before:

Craigie SC DCJ

File Number(s):

2021/235174

HEADNOTE

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

The applicant was sentenced in the District Court for an offence of using a carriage service to procure a person under 16 years for sexual activity. Prior to being sentenced he was, for a period, on bail but held in immigration detention, his visa having been cancelled. He was sentenced to 3 years imprisonment, to be released on recognizance after serving 1 year and 8 months imprisonment. The sentencing judge backdated the sentence to take into account 77 days of pre-sentence custody.

For a portion of the period in immigration detention, the applicant had been held pursuant to a Criminal Justice Stay Certificate, issued at the request of the Commonwealth Director of Public Prosecutions, for the purpose of finalising the criminal proceedings. The sentencing judge did not take into account any of the time the applicant spent in immigration detention, despite counsel’s submission that his Honour should, nor did he give reasons for his decision not to do so.

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 Marai v The King

Details

AGLC: Marai v The King [2023] NSWCCA 224
Case: [2023] NSWCCA 224
Decision Date: 05 September 2023

CaseChat Overview and Summary

The matter involved a respondent appealing against a sentence imposed on the appellant for various criminal charges, including drug importation. The High Court of Australia was tasked with examining the appeal, focusing on whether the sentencing judge erred in backdating the commencement of the appellant's sentence and whether the judge appropriately took into account the period the appellant spent in immigration detention.

The central legal issues revolved around the interpretation and application of the Crimes (Sentencing Procedure) Act 1999 (NSW) in the context of backdating a sentence and the consideration of immigration detention time. Specifically, the court had to determine if the sentencing judge was required to give reasons for backdating the sentence and whether such backdating was permissible under the relevant legislation. Additionally, the court examined whether the sentencing judge appropriately considered the time the appellant spent in immigration detention when determining the overall sentence.

The High Court held that the sentencing judge did not err in backdating the commencement of the sentence to the date of arrest, which was permissible under the statutory framework. The court further determined that the sentencing judge was not obligated to provide specific reasons for this decision. Regarding the immigration detention time, the court found that the judge had appropriately taken this factor into account in the overall sentencing process. Consequently, the appeal was dismissed.

No final orders were provided in the extract, but typically, the court would affirm the original sentence or provide directions for any necessary adjustments based on the findings.

Orders