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Sadiq v The King

Sadiq v The King

Case [2023] NSWCCA 25 20 February 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sadiq v R [2023] NSWCCA 25
Hearing dates: 7 December 2022
Decision date: 20 February 2023
Before: Leeming JA at [1];
Garling J at [66];
Adamson J at [67]
Decision:
1. Grant leave to appeal against the sentence imposed by the District Court on 23 July 2021.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – whether error in assessment of objective criminality – whether sentence manifestly excessive – parity – whether consideration of parity confined to events occurring within timeframe specified on indictment – leave granted but appeal dismissed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A(2)
Crimes Act 1900 (NSW), s 193B(2)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW), ss 11(C)(1), 24(2), Sch 1

Cases Cited:
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
El Kheir v R [2019] NSWCCA 288
Erv R [2018] NSWCCA 286
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Greentree v R [2018] NSWCCA 227
Grogan v R [2019] NSWCCA 51
House v The King (1936) 55 CLR 499; [1936] HCA 40
MLP v R [2014] NSWCCA 183
Nguyen & Tran [2021] NSWDC 576
Qin v R [2022] NSWCCA 137
R v Chandler; Chandler v R [2012] NSWCCA 135
R v Forero-Gomez [2021] NSWDC 131
R v Wensor [2019] NSWDC 399
R v Merhi [2020] NSWDC 910
Tsimingos v R [2021] NSWCCA 107

Category: Principal judgment
Parties: Bashir Sadiq (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Dalton SC, N Carroll (Applicant)
I Nash (Respondent)
Solicitors:
George Sten & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/374564
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

23 July 2021

Before:

Herbert DCJ

File Number(s):

2018/374564

Judgment

LEEMING JA: Mr Bashir Sadiq seeks leave to appeal from an aggregate sentence of 11 years imprisonment with a non-parole period of 6 years imposed by the District Court on 23 July 2021 following pleading guilty to two counts to knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for each offence was life imprisonment with a standard non-parole period of 15 years. The indicative sentences for each count, specified pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), were 7 years and 2 months and 9 years imprisonment respectively. Her Honour found that there should be a discount of 10% for the applicant’s guilty pleas, and thus those indicative sentences reflected undiscounted starting points of around 8 years and precisely 10 years.
The first count was based on some…

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 Sadiq v The King

Details

AGLC: Sadiq v The King [2023] NSWCCA 25
Case: [2023] NSWCCA 25
Decision Date: 20 February 2023

CaseChat Overview and Summary

In the case of Sadiq v The King, the appellant, Mr Sadiq, sought to appeal against his sentence on the grounds that there was an error in the assessment of the objective seriousness of the crime and that the sentence imposed was manifestly excessive. The appeal was heard by the High Court of Australia. The central issue before the court was whether the primary judge erred in assessing the objective seriousness of the crime and if the sentence was manifestly excessive. Additionally, the court considered whether the principle of parity, which requires sentences to be proportionate and consistent, was properly applied in the context of the events considered.

The court found that while the primary judge had erred in the assessment of the objective seriousness of the crime, this error did not lead to a manifestly excessive sentence. The court emphasised that the principle of parity should be applied broadly to all relevant events, not limited to those specified on the indictment. Despite the error, the court determined that the sentence was not manifestly excessive, as the overall punishment was appropriate in the circumstances. The court concluded that the sentence, while not ideal, was not so excessive as to warrant an appeal. Consequently, the appeal was dismissed despite the grant of leave.

Orders