Rizk v R

Case [2020] NSWCCA 291 6 November 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rizk v R [2020] NSWCCA 291
Hearing dates: 14 September 2020
Date of orders: 06 November 2020
Decision date: 06 November 2020
Before: Basten JA at [1];
Price J at [27];
Wright J at [28]
Decision:
(1) Grant the applicant leave to appeal.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – whether sentencing judge erred when proceeding on the basis of incorrect maximum penalty for an offence taken into account on a Form 1 – whether error capable of having a material impact on aggregate sentence
CRIMINAL LAW – sentence appeal – commencement date being date of expiration of term of revoked ICO – whether sentence imposed for primary offending should be made partly concurrent with time spent in custody because of revocation of ICO – no error in the circumstances
CRIMINAL LAW – sentence appeal – whether special circumstances – application of statutory ratio to effective sentence – minor divergences from statutory ratio – no error in setting non-parole period

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), ss 164, 165
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 33, 44, 53A; Pt 5
Criminal Appeal Act 1912 (NSW). s 5
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Poisons and Therapeutic Goods Act 1966 (NSW), s 16
Sentencing Act 1989 (NSW), s 5

Cases Cited:
Andreata v R [2015] NSWCCA 239
Attorney General’s Application Under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Calhoun (a pseudonym) v R [2018] NSWCCA 150
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Campbell v R [2018] NSWCCA 17
GP v R [2017] NSWCCA 200
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hutchen v R [2015] NSWCCA 101
Ith v R [2013] NSWCCA 280
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lee v R [2016] NSWCCA 146
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCA 255
Lonsdale v R [2020] NSWCCA 267
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Stephen Leslie Newton v R [2009] NSWCCA 128
Zaky v R (Cth) [2017] NSWCCA 141

Category: Principal judgment
Parties: Ahmed Rizk (Applicant)
Regina (Crown)
Representation:
Counsel:
D Barrow (Applicant)
M Millward (Crown)
Solicitors:
Oxford Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/00242561
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 December 2019

Before:

Bourke SC DCJ

File Number(s):

2018/00242561

Judgment

BASTEN JA: I agree with…

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 Rizk v R

Details

AGLC: Rizk v R [2020] NSWCCA 291
Case: [2020] NSWCCA 291
Decision Date: 06 November 2020

CaseChat Overview and Summary

Rizk appealed against his sentence in the High Court of Australia. The respondent was the Crown. Rizk had been sentenced to imprisonment for various offences. He had argued that the sentencing judge had erred in considering the maximum penalty for an offence that was taken into account on a Form 1. Rizk contended that this error could have had a material impact on the aggregate sentence imposed. Rizk further argued that the sentence for the primary offence should be made partly concurrent with the time spent in custody due to the revocation of an interim correction order. He also claimed that the court had erred in not considering certain factors as special circumstances and in applying the statutory ratio to the effective sentence.
The court found that there was no error in the sentencing judge's consideration of the maximum penalty for the offence taken into account on a Form 1. The court held that the error, if any, could not have had a material impact on the aggregate sentence. Regarding the commencement date of the sentence, the court held that there was no error in the sentencing judge's decision not to make the sentence for the primary offence partly concurrent with the time spent in custody due to the revocation of the interim correction order. The court also found that there were no special circumstances that warranted a departure from the statutory ratio. The court held that the minor divergences from the statutory ratio did not amount to an error in setting the non-parole period.

The appeal was dismissed.

Orders