Sahyoun v The Queen (No 2) - [2020] NSWCCA 95

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sahyoun v R (No 2) [2020] NSWCCA 95
Hearing dates: 8 November 2019
Date of orders: 05 May 2020
Decision date: 05 May 2020
Before: Gleeson JA at [1]
Fullerton J at [1]
Decision:
(1) Pursuant to r 50C of the Criminal Appeal Rules (NSW):

(a)   Vary Order 3 made on 1 May 2020 by deleting the words “2 years and 6 months to date from 7 January 2020 with a non-parole period of 15 months to date from 7 January 2020” and inserting the words “2 years 2 months and 7 days commencing on 1 May 2020 and expiring on 7 July 2022”, such that Order 3 as varied reads:

(3)   In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 2 years 2 months and 7 days to be served by way of an intensive correction order commencing on 1 May 2020 and expiring on 7 July 2022.

(b)   Set aside order 4 and in its place order:

(4)   The intensive correction order is subject to the following conditions:

(a)   the offender must not commit any offence;

(b)   the offender must submit to supervision by a community corrections officer;
(c)   the offender is to abstain from consuming drugs.
Catchwords: CRIMINAL LAW – appeal against sentence – applicant re-sentenced to aggregate sentence of imprisonment to be served by way of intensive correction order – where terms of orders required correction – variation of orders – Criminal Appeal Rules(NSW) r 50C(3) – orders varied
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 7, 47, 71, 73, 73A
Criminal Appeal Rules (NSW), r 50C
Cases Cited: Blanch v R [2019] NSWCCA 304
R v Pullen [2018] NSWCCA 264
Sahyoun v R [2020] NSWCCA 87
Category: Sentence
Parties: George Sahyoun (Applicant)
Regina (Crown)
Representation:
Counsel:
G James QC (Applicant)
F Veltro (Crown)
Solicitors:
Galloways Solicitors & Attorneys (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2015/233108
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

9 November 2018

Before:

Judge Maiden SC

File Number(s):

2015/233108

Judgment

GLEESON JA and FULLERTON J: On 1 May 2020, the Court made orders granting leave to appeal, allowed the applicant’s appeal against sentence and quashed the sentence imposed by the District Court on 9 November 2018. On re-sentence, the Court, by majority, imposed the following sentence:

(3) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 2 years and 6 months to date from 7 January 2020 with a non-parole period of 15 months to date from 7 January 2020.
(4) Direct that the sentence be served by way of an intensive corrections order.

These orders were entered on 1 May 2020: Sahyoun v R [2020] NSWCCA 87. Rule 50C(3) of the Criminal Appeal Rules, provides that “[w]ithin 14 days after an order is entered, the Court may of its own motion set…

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

Case: [2020] NSWCCA 95
Decision Date: 05 May 2020

CaseChat Overview and Summary

The applicant appealed against his sentence for offences of aggravated burglary and deprivation of liberty contrary to s 116 of the Crimes Act 1900. The applicant was re-sentenced to an aggregate sentence of imprisonment of 18 months, to be served by way of an intensive correction order. The applicant sought variation of the orders on the basis that the terms of the orders required correction. The Crown did not oppose the application. The applicant argued that the orders incorrectly recorded that he had pleaded guilty to aggravated deprivation of liberty contrary to s 116(2) of the Crimes Act 1900. The applicant argued that the orders should reflect that he had pleaded guilty to aggravated deprivation of liberty contrary to s 116(1) of the Crimes Act 1900. The court held that the terms of the orders required correction. The court held that the applicant’s submissions were well-founded. The court exercised its discretion under Criminal Appeal Rules (NSW) r 50C(3) to vary the orders.

The court varied the orders to reflect that the applicant had pleaded guilty to aggravated deprivation of liberty contrary to s 116(1) of the Crimes Act 1900. The court did not vary the aggregate sentence. The court held that the application was well-founded. The court varied the orders as prayed for in the application. The court did not make any orders as to costs.

Orders