Saleh v The Queen - [2016] HCATrans 175

[2016] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S45 of 2016

B e t w e e n -
ADAM SALEH
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 28 JULY 2016, AT 11.02 AM

MR H.K. DHANJI, SC: May it please the Court, I appear with my learned friend, MS J.S. PAINGAKULAM, for the applicant. (instructed by Legal Aid NSW)

MR I.D. BOURKE, SC: May it please the Court, I appear with my learned friend, MR R.J. RANKEN, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

KEANE J: Yes, Mr Dhanji.

MR DHANJI: Thank you, your Honour. Your Honours, the applicant requires an extension of time.

KEANE J: Is that opposed, Mr Bourke?

MR BOURKE: No, your Honour, it is not.

KEANE J: Extension of time is granted.

MR DHANJI: Thank you, your Honour. Your Honours will appreciate that this was an appeal to the Court of Criminal Appeal on the sentence imposed in the District Court, that appeal being brought by the Crown pursuant to the Criminal Appeal Act (NSW). There was no issue that that right of appeal was available to the Commonwealth Director.

Your Honours will also appreciate that what happened as a result of that appeal was that the applicant’s sentence was changed quite dramatically. He was sentenced to a term of imprisonment for two years at first instance, with an order made for his immediate release upon a recognisance. On appeal, by majority, that sentence was increased to one of three years but also with an order that he be released on a recognisance after serving two years of that sentence. So there was a very substantial change, both in terms of the length of the sentence and its duration.

In coming to the determination to impose that sentence, it is our contention that the Court of Criminal Appeal fell into error in four important regards. Can I say at the outset that with respect to the four matters raised in our draft notice of appeal we accept that, with respect to the fourth ground, that does not raise a point of general importance but, in our submission, your Honours have in this case a judgment that does raise three other points of significant importance.

The fourth one is, of course, we say, important with the other three to the actual determination of the case and in that sense it would be a matter in which it may be considered necessary to grant leave if leave is granted with respect to the first three grounds. If I could say something in terms of firstly the first special leave issue ‑ ‑ ‑

KEANE J: Is not the answer to the first special leave ground - is not the answer to the question, it depends?

MR DHANJI: Well, can I put…

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.

Keep reading for free

Create a free CaseChat account to read Saleh v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] HCATrans 175
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by Mr Saleh (the applicant) against a decision of the Court of Criminal Appeal of New South Wales. The applicant sought an extension of time to bring his appeal, which was not opposed by the respondent, the Commonwealth Director of Public Prosecutions. The Court of Criminal Appeal had, by majority, increased the applicant's sentence from two years imprisonment with immediate release on recognisance to three years imprisonment with release on recognisance after serving two years.

The applicant contended that the Court of Criminal Appeal erred in three important regards when increasing his sentence. The primary legal issue was whether the Court of Criminal Appeal had fallen into error in its assessment of the adequacy of the original sentence, particularly concerning the general deterrent effect of suspended sentences and the weight to be given to the impact of a custodial sentence on the offender's family and dependants. The applicant argued that the Court of Criminal Appeal's reasoning, which appeared to discount the general deterrent effect of suspended sentences and to treat the impact on family as secondary to the offender's criminality, was flawed.

The High Court, in refusing special leave, indicated that the proposed appeal would not raise any issue of principle warranting the grant of special leave. While the applicant argued that the Court of Criminal Appeal had misapplied sentencing principles, particularly regarding the role of general deterrence and the mandatory consideration of the impact on dependants under section 16A(2)(p) of the Crimes Act 1914 (Cth), the Court found no arguable error of principle. The Court implicitly accepted that the Court of Criminal Appeal's decision, despite the applicant's submissions, was within the bounds of its sentencing discretion and did not present a question of law of general importance.

Orders