Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Said v R [2019] NSWCCA 239 Hearing dates: 7 June 2019 Decision date: 11 October 2019 Before: Hoeben CJ at CL at [1];
White JA at [86];
Hamill J at [94]Decision: (1) Leave is granted to the applicant to appeal against sentence.
(2) The appeal is allowed.
(3) The sentence imposed by Bellew J on 3 November 2017 is quashed.
(4) In lieu thereof, the applicant is sentenced to imprisonment for a period of 9 years, commencing 26 May 2016 and expiring 25 May 2025, with a non-parole period of 6 years and 9 months, expiring 25 February 2023.Catchwords: CRIMINAL LAW – sentence appeal – making documents connected with preparation for a terrorist act – error in failing to have regard to the utilitarian value of the plea of guilty – need to independently re-exercise the sentencing discretion – need for such re-sentence to reflect considerations of general deterrence, protection of the community and denunciation of the offence – appeal allowed and applicant re-sentenced. Legislation Cited: Crimes Act 1914 (Cth) – Pt 1C, s 16A(2)
Criminal Code 1995 (Cth) – s 101.5(1)Cases Cited: Huang v R [2018] NSWCCA 57
IM v R [2019] NSWCCA 107
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; 179 A Crim R 470
R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
Xiao v R [2018] NSWCCA 4; 96 NSWLR 1Texts Cited: Nil Category: Principal judgment Parties: Farhad Said – Applicant
Regina (Cth) – Respondent CrownRepresentation: Counsel:
Solicitors:
R Pontello SC/N Bennett – Applicant
N Robinson QC/M England – Respondent
Zahr Partners – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown
File Number(s): 2016/161972 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Criminal
- Citation:
- R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
- Date of Decision:
- 3 November 2017
- Before:
- Bellew J
- File Number(s):
- 2016/161972
JUDGMENT
-
HOEBEN CJ at CL:
Offence and sentence
On 19 July 2017, the applicant pleaded guilty in the Supreme Court to a single count of making a document and the document was connected with the preparation for a terrorist act and he knew of that connection, contrary to s 101.5(1) of the Criminal Code 1995 (Cth) (the Criminal Code). This offence carries a maximum penalty of imprisonment for 15 years and a substantial fine.
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On 3 November 2017, the applicant was sentenced to imprisonment for a period of 9 years and 6 months, commencing 26 May 2016 and expiring 25 November 2025, with a non-parole period of 7 years and 1 month expiring 25 June 2023.
-
The applicant seeks leave to appeal…
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- AGLC
- Said v The Queen [2019] NSWCCA 239
- Case
- [2019] NSWCCA 239
- Decision Date
CaseChat Overview and Summary
The High Court determined that the original sentencing judge had indeed failed to give sufficient weight to the utilitarian benefits of the appellant's guilty plea. This omission constituted a material error in the sentencing process. The court emphasised the importance of ensuring that the sentence reflects the full range of relevant considerations, including the value of a guilty plea in expediting justice and reducing the burden on the legal system. The High Court concluded that, as a result of this error, it was necessary to independently re-exercise its sentencing discretion. The re-imposed sentence needed to appropriately balance the principles of general deterrence, protection of the community, and denunciation of the offence, taking into account the appellant's guilty plea.
Following its reasoning, the High Court allowed the appeal and re-sentenced the appellant. The court's re-imposed sentence was intended to ensure that all relevant factors were duly considered, including the utilitarian value of the guilty plea, and that the sentence appropriately reflected the necessary principles of sentencing. The re-imposed sentence was thus a result of the court's independent exercise of its sentencing discretion, taking into account the full context of the case.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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