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Refaieh v The Queen

Refaieh v The Queen

Case [2018] NSWCCA 72 18 April 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Refaieh v R [2018] NSWCCA 72
Hearing dates: 26 February 2018
Date of orders: 18 April 2018
Decision date: 18 April 2018
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
N Adams J at [3]
Decision:
(1) Leave to appeal is granted.

(2) The appeal is allowed to the extent of one day.
(3) The sentence imposed by Judge Toner SC on 15 July 2016 is adjusted so that the applicant is sentenced to a term of imprisonment with a non-parole period of four years commencing 19 August 2015 and expiring 18 August 2019 with a balance of term of two years, expiring 18 August 2021.
Catchwords: SENTENCING – Appeal against sentence – severity – commencement date of sentence – offender was on bail for offence subject of sentencing proceedings but remanded in custody for a separate murder charge that was later no billed – whether the trial judge erred in failing to find that the time on remand was “in relation to” to the offence the subject of the sentencing proceedings, pursuant to s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether the trial judge erred in properly exercising his discretion under s 47(2) of the Act by not backdating the sentence further to account for this additional time spent on remand
Legislation Cited: Bail Act 2013 (NSW), ss 7, 14, 50, 51
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 44, 47
Criminal Appeal Act 1912 (NSW), s 5
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited: Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150
Hamilton v R [2016] NSWCCA 59
Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131
House v R (1936) 55 CLR 499; [1936] HCA 40
Hutchen v R [2015] NSWCCA 101
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Parkhizkar v R (2014) 245 A Crim R 515; [2014] NSWCCA 240
R v Callaghan (2006) 160 A Crim R 145; [2006] NSWCCA 58
R v Cartwright (1989) 17 NSWLR 243
R v Connell [2013] NSWCCA 155
R v Dadash [2012] NSWSC 1511
R v Karageorge [1999] NSWCCA 213
R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unrep)
R v Pham [2005] NSWCCA 94
R v Thompson (2005) 156 A Crim R 467; [2005] NSWCCA 11
R v Windle [2012] NSWCCA 222
Sultana v R [2007] NSWCCA 107
Category: Principal judgment
Parties: Ahmed Refieah (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms G E Lewer (Applicant)
Ms B Baker (Respondent)
Solicitors:
Galbally Rolfe (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2014/127610
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 July 2016

Before:

Toner DCJ

File Number(s):

2014/127610

Judgment

HOEBEN…

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 Refaieh v The Queen

Details

AGLC: Refaieh v The Queen [2018] NSWCCA 72
Case: [2018] NSWCCA 72
Decision Date: 18 April 2018

CaseChat Overview and Summary

The appeal concerns a decision by the NSW District Court in which Refaieh, the appellant, sought to challenge the severity of his sentence. The appellant had been on bail for the offence which led to the sentencing proceedings, but was remanded in custody for a separate murder charge which was later no-billed. The appellant argued that the trial judge should have found that the time he spent on remand was “in relation to” the offence for which he was being sentenced, pursuant to section 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Additionally, the appellant submitted that the trial judge should have backdated the sentence to account for this additional time spent on remand, in the exercise of his discretion under section 47(2) of the Act.

The central issues for the court were whether the trial judge erred in not finding that the time spent on remand was “in relation to” the offence for which the appellant was being sentenced, and whether the trial judge erred in not backdating the sentence to account for this time. The appellant relied on the provisions of section 47 of the Act, which allow for the backdating of a sentence to account for time spent on remand where it can be shown that the time was spent “in relation to” the offence for which the sentence is being imposed. The appellant submitted that the trial judge failed to properly apply the provisions of the Act and that this failure led to an unjust outcome.

The court found that the trial judge had not erred in his application of section 47 of the Act. The court held that the time spent on remand was not “in relation to” the offence for which the appellant was being sentenced, as the appellant was remanded in custody for a separate offence. The court further held that the trial judge had properly exercised his discretion under section 47(2) of the Act by not backdating the sentence to account for this additional time spent on remand. The court found that the appellant had not demonstrated that the time spent on remand was connected to the offence for which he was being sentenced, and that the trial judge had not erred in his consideration of this issue.

The appeal was dismissed. The court found that the trial judge had properly exercised his discretion under section 47 of the Act, and that the appellant was not entitled to have his sentence backdated to account for the time spent on remand. The appellant’s appeal against sentence was dismissed in its entirety.

Orders