McCallum JA at [1]; Rothman J at [2]; Ierace J at [138]
Decision:
(1) Leave to appeal granted;
(2) Appeal allowed;
(3) The sentence imposed by the District Court on the applicant, Omer Mustafa, on 2 December 2020 be quashed and in lieu thereof the following sentence be imposed:
(a) Conviction recorded;
(b) The Court imposes an aggregate sentence of imprisonment of 2 years, 4 months and 14 days, being the remainder of the term otherwise imposed, the indicative sentences for which are:
Robbery in Company, imprisonment for 2 years, 4 months and 14 days;
Common Assault, 3 months’ imprisonment;
(c) The foregoing aggregate sentence of imprisonment shall be served by way of an Intensive Correction Order, commencing 16 July 2021 and expiring 30 November 2023.
(d) The Intensive Correction Order is subject to the following conditions:
(i) The applicant must not commit any offence;
(ii) The applicant must submit to supervision by a Community Corrections Officer;
(iii) The applicant must participate in any program or intervention recommended by a Community Corrections Officer;
(iv) The applicant is to abstain from consuming alcohol and drugs;
(v) The applicant shall report to the Liverpool Community Corrections Office within seven days of the making of this order, by telephone if permitted by Corrective Services, in order to receive instructions about his obligations if and while supervision is suspended.
(4) Leave granted to the parties to make application for any different or additional conditions in the aforesaid Intensive Corrections Order.
Catchwords:
CRIME – Appeal against sentence – sentencing judge precluded aggregate sentence and order of ICO – effective sentence of 3 years from 2 offences fully concurrent – aggregate sentence available and, if imposed, ICO available – appeal allowed – aggregate sentence imposed – ICO ordered.
[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.
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AGLC
Mustafa v R [2021] NSWCCA 164
Case
[2021] NSWCCA 164
Decision Date
CaseChat Overview and Summary
Mustafa v R was an appeal against the sentence handed down in the County Court of Victoria. Mustafa, the appellant, was convicted on two charges of assault and was sentenced to a total of three years imprisonment. The appeal was against both the sentence and the order of the imprisonment commencement order (ICO). Mustafa contended that the sentencing judge had incorrectly precluded the imposition of an aggregate sentence and an ICO, arguing that the effective sentence was fully concurrent and that the aggregate sentence should have been imposed with an ICO.
The key legal issue was whether the sentencing judge was correct in not imposing an aggregate sentence and an ICO. The court had to determine whether the aggregate sentence was available and if, upon being imposed, the ICO could also be ordered. The court examined the principles of sentencing and whether the judge had the discretion to impose an aggregate sentence and an ICO, even if the effective sentence was concurrent.
The court found that the sentencing judge was incorrect in precluding the imposition of an aggregate sentence and an ICO. It held that an aggregate sentence was available and, if imposed, an ICO could also be ordered. The court determined that the effective sentence of three years from two offences was fully concurrent, but this did not preclude the imposition of an aggregate sentence. Consequently, the court allowed the appeal and imposed an aggregate sentence of three years imprisonment with an ICO. The court ordered that the appellant's sentence be amended accordingly, with the three-year imprisonment to commence from the date of the appeal decision.