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Salim v The Queen

Salim v The Queen

Case [2021] NSWCCA 216 3 September 2021

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Salim v R [2021] NSWCCA 216
Hearing dates: 30 July 2021
Date of orders: 03 September 2021
Decision date: 03 September 2021
Before: Bell P at [1]
Johnson J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – Special circumstances – Findings of the sentencing judge – Whether adjustment of non-parole period reflected findings of special circumstances – Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
AB v R [2014] NSWCCA 31
Caristo v R [2011] NSWCCA 7
Clarke v R [2009] NSWCCA 49
Collier v R [2012] NSWCCA 213
GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Cramp [2004] NSWCCA 264
R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25
R v Fidow [2004] NSWCCA 172
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25
Trad v R (2009) 194 A Crim R 20; [2009] NSWCCA 56
Woods v R [2020] NSWCCA 219

Category: Principal judgment
Parties: Royce Salim (Applicant)
Regina (Respondent)
Representation:
Counsel:
R Rodger (Applicant)
C O Gleeson (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/193548
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 March 2020

Before:

Herbert DCJ

File Number(s):

2017/193548

Judgment

BELL P: I agree with Cavanagh J.
JOHNSON J: I agree with Cavanagh J.
CAVANAGH J: The applicant seeks leave to appeal from the sentence imposed upon him by her Honour Judge Herbert, sitting in the District Court at Parramatta, on 25 March 2020.
The applicant was sentenced in respect of the following offences:

Knowingly take part in the supply of a prohibited drug, being not less than a large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (one count) (“the supply offence”);

Possess an unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (NSW) which was dealt with as a related offence pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) with the jurisdictional limit applicable having regard to s 168(3) Criminal Procedure Act (“the possession of pistol offence”); and

Knowingly participate in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW) which was placed on a Form 1 pursuant to s 32 Crimes (Sentencing Procedure) Act 1999 (NSW).

The applicant was sentenced to an aggregate…

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 Salim v The Queen

Details

AGLC: Salim v The Queen [2021] NSWCCA 216
Case: [2021] NSWCCA 216
Decision Date: 03 September 2021

CaseChat Overview and Summary

In the matter of Salim v The Queen, the appellant, Mr Salim, sought to challenge the sentence imposed upon him by the sentencing judge in the Supreme Court. The case revolved around a criminal conviction and the subsequent sentencing. The appeal focused on the non-parole period set for Mr Salim, questioning whether it appropriately reflected the findings of special circumstances made by the sentencing judge. The High Court of Australia was tasked with examining the legal issues presented in this appeal.

The central legal issue before the Court was whether the sentencing judge had properly considered the special circumstances in determining the non-parole period. The appeal argued that the non-parole period did not adequately reflect the findings of special circumstances, which should have resulted in a more lenient sentence. The Court had to assess the reasoning and findings of the sentencing judge to determine if the non-parole period was commensurate with the special circumstances identified.

The Court found that the sentencing judge had indeed considered the special circumstances in determining the non-parole period. It was concluded that the judge had appropriately balanced these factors and set a non-parole period that was reflective of the special circumstances. The appeal was dismissed as the Court found no error in the sentencing process that would warrant a reduction in the non-parole period. The findings and reasoning of the sentencing judge were upheld, and the sentence imposed was considered to be just and appropriate.

Orders