Meagher JA at [1] Schmidt J at [2] Bellew J at [3]
Decision:
Leave to appeal granted. Appeal dismissed.
Catchwords:
CRIMINAL LAW – Sentence - Where unexplained delay of 17 months between admissions made by applicant and charges being laid – Where delay found to have resulted in the applicant becoming anxious and concerned – Whether the sentencing judge erred in finding that the delay was not to the applicant’s detriment – Relevance of delay on sentence
CRIMINAL LAW – Sentence – Whether sentencing judge erred in partially accumulating sentences for offences arising from one course of conduct – Whether sentencing judge erred in making a recognizance release order to operate after the applicant had served 70% of the head sentence
CRIMINAL LAW – Sentence – Offences of revenue fraud – Whether the sentence imposed was manifestly excessive – Whether some other sentence warranted in law
Counsel: Mr I Todd - Applicant Mr T Anderson - Respondent
Solicitors:
File Number(s):
2012/252596
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
11 April 2014
Before:
Syme DCJ
Judgment
MEAGHER JA: I agree with Bellew J.
SCHMIDT J: I agree with Bellew J.
BELLEW J: On 3 October 2013 Marcus Sabra (“the applicant”) pleaded guilty to:
two (2) counts of dishonestly obtaining a financial advantage from a Commonwealth entity, contrary to s. 134.3(1) of the Criminal Code 1995 (Cth)…
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.
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Details
AGLC
Sabra v R [2015] NSWCCA 38
Case
[2015] NSWCCA 38
Decision Date
CaseChat Overview and Summary
In the case of Sabra v R, the applicant, who was convicted of multiple counts of revenue fraud, appealed against his sentence. The applicant's admissions were made 17 months before charges were laid, which led to an unexplained delay that caused the applicant anxiety and concern. The appeal focused on the impact of this delay on the sentence and whether the sentencing judge correctly assessed its relevance. Additionally, the applicant argued that the judge erred in partially accumulating the sentences for offences arising from one course of conduct and in making a recognizance release order to operate after the applicant had served 70% of the head sentence. The final issue was whether the sentence imposed was manifestly excessive and whether an alternative sentence was warranted in law.
The court examined whether the delay in charging the applicant had an impact on the sentence. The applicant argued that the delay was to his detriment, but the court found that the delay did not affect the sentence's severity. The court also considered whether the sentencing judge erred in partially accumulating the sentences for the offences. It was determined that the judge did not err in this regard, as the cumulative sentencing approach was appropriate given the nature of the offences. The court further evaluated the recognizance release order, finding that it was not an error to make it operate after the applicant had served 70% of the head sentence. Lastly, the court assessed whether the sentence imposed was manifestly excessive and found that it was not, concluding that the sentence was warranted in law.
The court upheld the applicant's sentence, finding no errors in the sentencing judge's assessment of the delay's impact, the partial accumulation of sentences, or the recognizance release order. The court also rejected the applicant's claim that the sentence was manifestly excessive. Consequently, the appeal was dismissed, and the original sentence was confirmed. The final orders of the court were that the appeal be dismissed, and the applicant's sentence remain as imposed by the sentencing judge.