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
Cassella v R [2019] NSWCCA 201
Franklin v R [2016] NSWCCA 319
Mandranis v R [2021] NSWCCA 97
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 Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531
Category: Principal judgment Parties: Mohammad Edelbi (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
T Game SC, P Lange (Applicant)
M Millward (Respondent)
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…
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- R v Edelbi [2021] NSWCCA 122
- Case
- [2021] NSWCCA 122
- Decision Date
CaseChat Overview and Summary
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
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Background
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