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R v Edelbi

R v Edelbi

Case [2021] NSWCCA 122 16 June 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Edelbi [2021] NSWCCA 122
Hearing dates: 28 April 2021
Decision date: 16 June 2021
Before: Hoeben CJ at CL at [1]
Bellew J at [2]
Hidden AJ at [16]
Decision:
(By majority)
(1)   Leave to appeal granted.
(2)   Appeal allowed; sentence imposed in the District Court on 12 May 2020 quashed.
(3)   In lieu thereof the applicant be sentenced to an aggregate term of imprisonment for 1 year and 11 months, commencing on 16 June 2021 and expiring on 15 May 2023.
(4) Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence to be served by way of intensive correction in the community.
(5)   In addition to the prescribed standard conditions, a condition that the applicant must receive any psychological treatment recommended to him applies.

Catchwords:
CRIMINAL LAW – application for leave to appeal against sentence – fraud offences – aggregate sentence – whether in reasons for sentence the trial judge should have considered an intensive correction order – requirements of s 66 Crimes (Sentencing Procedure) Act 1999 – whether offences amounted to a breach of trust – whether trial judge’s finding as to objective gravity open

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Blanch v R [2019] NSWCCA 304
Cassella v R [2019] NSWCCA 201
FL v R [2020] NSWCCA 114
Franklin v R [2016] NSWCCA 319
Karout v R [2019] NSWCCA 253
Mandranis v R [2021] NSWCCA 97
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610
R v Fangaloka [2019] NSWCCA 173
R v Smith [2000] NSWCCA 140
R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531
Ridley v R [2008] NSWCCA 324; (2008) 192 A Crim R 139
Suleman v R [2009] NSWCCA 70
Wany v DPP [2020] NSWCA 318

Category: Principal judgment
Parties: Mohammad Edelbi (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC, P Lange (Applicant)
M Millward (Respondent)
Solicitors:
Abbas Jacobs Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2017/285764
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Not applicable

Date of Decision:

12 May 2020

Before:

Hock DCJ

File Number(s):

2017/285764

Judgment

HOEBEN CJ at CL: I agree with Hidden AJ and the orders which he proposes. I particularly note his Honour’s unwillingness to engage in the “controversy” as to the proper construction of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
BELLEW J: I have had the advantage of reading, in draft, the judgment of Hidden AJ.
I agree, for the reasons that his Honour has given, that grounds…

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 R v Edelbi

Details

AGLC: R v Edelbi [2021] NSWCCA 122
Case: [2021] NSWCCA 122
Decision Date: 16 June 2021

CaseChat Overview and Summary

In the case of R v Edelbi, the appellant sought leave to appeal against the sentence imposed following a conviction for multiple fraud offences. The case was heard in the New South Wales Court of Criminal Appeal. The primary issue for the court was whether the trial judge should have considered an intensive correction order as a sentencing option and whether the trial judge's assessment of the objective gravity of the offences was open to challenge.

The court found that the trial judge had not considered an intensive correction order due to the severity of the offences and the appellant's criminal history. The court examined whether the trial judge should have considered this option under section 66 of the Crimes (Sentencing Procedure) Act 1999. It was noted that the nature of the offences, which involved a breach of trust, did not inherently preclude an intensive correction order, but the cumulative seriousness and the appellant's previous convictions led the trial judge to impose a custodial sentence.

The court also considered whether the trial judge's assessment of the objective gravity of the offences was correct. It was determined that the trial judge's findings were within the range of reasonable conclusions that could be reached. The court acknowledged the significant impact of the fraud on the victims and the appellant's extensive criminal history, which supported the severity of the sentence imposed.

Ultimately, the court dismissed the application for leave to appeal, upholding the sentence imposed by the trial judge. The reasoning was that the trial judge had appropriately considered the relevant factors and exercised their discretion within the bounds of reasonableness.

Orders