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Sefian v R

Sefian v R

Case [2018] NSWCCA 194 7 September 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sefian v R [2018] NSWCCA 194
Hearing dates: 20 August 2018
Date of orders: 07 September 2018
Decision date: 07 September 2018
Before: Hoeben CJ at CL at [1];
Price J at [83];
Harrison J at [84]
Decision:
(1) Leave to appeal against sentence out of time is granted.
(2) Leave to appeal is granted.
(3) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – robbery in company causing grievous bodily harm and aggravated break and enter and commit serious indictable offence – robbery involving serious injuries to householder – finding of special circumstances by sentencing judge – only small adjustment to non-parole period made – whether judge intended to make only a small adjustment – whether larger adjustment should have been made – error established – need to resentence – on resentence no lesser sentence warranted in law – sentence appeal dismissed.
Legislation Cited: Children's (Criminal Proceedings) Act 1987 (NSW) – s 15
Crimes Act 1900 (NSW) – ss 98, 105A, 112(2)
Crimes (Administration of Sentences) Regulation 2008 (NSW) – Clause 228
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 44(2B)
Criminal Appeal Act 1912 (NSW) – s 10(1)(b)
Cases Cited: Allen v R [2015] NSWCCA 113
AM v R [2012] NSWCCA 203; 225 A Crim R 481
BR v R [2015] NSWCCA 255
Caristo v R [2011] NSWCCA 7
CM v R [2013] NSWCCA 341
Collier v R [2012] NSWCCA 213
DG v R [2017] NSWCCA 139
Heron v R [2006] NSWCCA 215
Hornhardt v R [2017] NSWCCA 186
Jiang v R [2010] NSWCCA 277
Jinnette v R [2012] NSWCCA 217
Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lehn v R [2016] NSWCCA 255
MD v R [2015] NSWCCA 37
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Sabongi v R [2015] NSWCCA 25
Soames v R [2014] NSWCCA 158
Trad v R [2009] NSWCCA 56; 194 A Crim R 20
Category: Principal judgment
Parties: Moustafa Sefian – Applicant
Regina – Respondent Crown
Representation:
Counsel:
R Wilson – Applicant
D Hatfield – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/127931
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

5 December 2014

Before:

Hanley SC DCJ

File Number(s):

2013/127931

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 3 April 2014 after a five day trial before his Honour Judge Hanley SC and a jury, the applicant was convicted of the following two counts:

Count 1 – Robbery in company causing grievous bodily harm, contrary to s 98 Crimes Act 1900 (NSW). The offence carries a maximum penalty of imprisonment for 25 years and a standard non-parole…

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 Sefian v R

Details

AGLC: Sefian v The Queen [2018] NSWCCA 194
Case: [2018] NSWCCA 194
Decision Date: 07 September 2018

CaseChat Overview and Summary

In the case of Sefian v R, the appellant, Sefian, appealed against his sentence for his involvement in a robbery in company, during which grievous bodily harm was inflicted upon the householder. The matter was heard and determined by the High Court of Australia. The appellant's conviction was not in question; however, the adequacy of the sentence imposed by the sentencing judge was contested, particularly concerning the non-parole period.

The primary legal issue before the court was whether the sentencing judge intended to make only a minor adjustment to the non-parole period, as opposed to a larger adjustment that might have been warranted. The court also considered whether, in light of any error identified, a resentencing was necessary and, if so, whether a lesser sentence would be justified under the law. The court examined the severity of the crime, the presence of special circumstances, and the proportionality of the sentence imposed.

The High Court found that an error had indeed been made by the sentencing judge in adjusting the non-parole period, but this did not necessitate a resentencing with a lesser sentence. The court held that the judge's intention was to make only a small adjustment, and no larger adjustment was warranted by the circumstances of the case. Consequently, the appeal against the sentence was dismissed, and the original sentence was upheld.

Orders