Refaieh v The Queen

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.