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Sabbah v R (Cth)

Sabbah v R (Cth)

Case [2020] NSWCCA 89 6 May 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sabbah v R (Cth) [2020] NSWCCA 89
Hearing dates: 27 March 2020
Date of orders: 06 May 2020
Decision date: 06 May 2020
Before: McCallum JA at [1]
Wilson J at [11]
Cavanagh J at [158]
Decision:
1. Leave to appeal granted;
2. Appeal dismissed

Catchwords: CRIME – Sentence – application for leave to appeal against asserted excessiveness of sentence – possession of counterfeit money – utility of sentencing statistics based on small sample – utility of decided cases in determining whether sentence is manifestly excessive
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Crimes Act 1914 (Cth)
Crimes (Currency) Act 1981 (Cth)
Reserve Bank Act 1959 (Cth)
Cases Cited: Barbaro v The Queen [2014] HCA 2
Dang v R [2014] NSWCCA 47
Dinsdale v The Queen 202 CLR 321, [2000] HCA 54
DPP v Kevin Rohde and Others (1985) 17 A Crim R 166
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Lowndes v The Queen 195 CLR 665; [1999] HCA 29
MLP v R [2014] NSWCCA 183
Markarian v The Queen 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Naveed v R [2019] NSWCCA 149
Ngatamariki v R [2016] NSWCCA
O’Keefe v R (1993) 67 A Crim R 381
Parente v R [2017] NSWCCA 284
Pham v R [2014] NSWCCA 115
R v Eddie Ali Shaitly (District Court of NSW, 3 October 1996, unrep)
R v Geaney (District Court of NSW, 27 October 1995, unrep)
R v Gittani [2002] NSWCCA 139
R v Institoris (2002) 129 A Crim R 458, [2002] NSWCCA 8
R v Meades (District Court of NSW 29 June 2000, unrep)
R v Megaloudis [2013] NSWDC 302
R v Oppedisano (District Court of NSW 27 October 1995, unrep).
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
The Queen v Pham [2015] HCA 39
Vandeventer v R [2013] NSWCCA 33
Vaiusu v R [2017] NSWCCA 71
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Wong v The Queen 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Henry Sabbah (Applicant)
Director of Public Prosecutions (Commonwealth) (Respondent)
Representation:
Counsel:
Mr M Crawford-Fish (Applicant)
Mr R J Perrignon (Respondent)
Solicitors:
Mr A Harris (Applicant)
Mr B Scard for Solicitor for Public Prosecutions (Commonwealth) (Respondent)

File Number(s): 2016/00116063
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

31 August 2018

Before:

Girdham SC DCJ

File Number(s):

2016/00116063

Judgment

MCCALLUM JA: I agree with Wilson J that the appeal should be dismissed. Subject to what follows, I agree with her Honour’s reasons for reaching that conclusion.
Justice Wilson’s analysis of the comparable cases relied upon by the applicant includes reference to the remarks of…

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 Sabbah v R (Cth)

Details

AGLC: Sabbah v R (Cth) [2020] NSWCCA 89
Case: [2020] NSWCCA 89
Decision Date: 06 May 2020

CaseChat Overview and Summary

The matter before the court involved an appeal by Sabbah against the sentence imposed on him for possession of counterfeit money. The Federal Court of Australia was tasked with determining whether the sentence was manifestly excessive and whether leave to appeal should be granted. The appellant contended that the sentence was excessive in light of the available sentencing statistics and precedent cases. The legal issues before the court involved assessing the correctness of the primary judge's approach to sentencing, particularly in relation to the weight given to sentencing statistics and decided cases in determining the appropriate penalty.

The court examined the primary judge's sentencing process and considered whether the sentence was manifestly excessive. The court noted that while sentencing statistics and decided cases could provide some guidance, they were not determinative and must be applied with caution. The court held that the primary judge had correctly considered the relevant factors and that the sentence imposed was not manifestly excessive. The court also determined that the utility of sentencing statistics based on a small sample was limited and that the primary judge had appropriately exercised their discretion in determining the appropriate penalty. The court further found that the primary judge had adequately considered the decided cases and that the sentence was commensurate with the offence committed.

The court ultimately dismissed the appeal and refused the application for leave to appeal. The court held that the sentence imposed by the primary judge was not manifestly excessive and that the appeal was without merit. The court emphasised the importance of exercising judicial discretion in sentencing matters and that the primary judge had appropriately balanced the relevant factors in determining the appropriate penalty. The decision underscores the court's reluctance to interfere with sentencing decisions, particularly where the sentence falls within the range of penalties generally considered appropriate for the offence committed. The court's refusal to grant leave to appeal further highlights the high threshold that must be met for an appeal against sentence to succeed.

Orders