Court of Criminal Appeal
New South Wales
Case Title: Shaba v R Medium Neutral Citation: [2011] NSWCCA 154 Hearing Date(s): 4 July 2011 Decision Date: 06 July 2011 Jurisdiction: Criminal Before: Bathurst CJ at 1
Hall J at 2
Harrison J at 3Decision: 1.Grant leave to appeal.
2.Allow the appeal in part.
3.Order in lieu of the sentence imposed upon the applicant by Nicholson DCJ on 18 January 2010 commencing on that day, that the sentence imposed upon the applicant commence on 5 December 2009.
4.Otherwise confirm Nicholson DCJ's orders.
The applicant's non-parole period will expire on 4 December 2012. The first day upon which he will be entitled to be released on parole is 5 December 2012. The additional term set by Nicholson DCJ will now expire on 4 December 2015.Catchwords: CRIMINAL LAW - sentence appeal - whether sentencing judge erred in not ordering the sentence to commence at an earlier date - whether some other sentence was warranted in law and should have been passed - appeal allowed in part - sentence backdated by 1 month and 13 days
Legislation Cited: Cases Cited: R v AB [2007] NSWSC 1517
R v Close (1992) 31 NSWLR 743
R v Deng [2007] NSWCCA 216
R v Newman and Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Schodde [2003] NSWCCA 164; (2003) 142 A Crim R 307
R v Shamouil and David [2009] NSWSC 24
Wiggins v R [2010] NSWCCA 30Texts Cited: Category: Principal judgment Parties: Dilan Shaba (Applicant)
Crown (Respondent)Representation - Counsel: - Counsel:
S Corish (Applicant)
C Maxwell QC with T Smith (Respondent)- Solicitors: - Solicitors:
B Sandland, Legal Aid New South Wales (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)File number(s): 2007/8280009 Decision Under Appeal - Court / Tribunal: - Before: Nicholson DCJ - Date of Decision: - Citation: - Court File Number(s) 2007/8280 Publication Restriction:
Judgment
BATHURST CJ : I agree with the reasons and orders proposed by Harrison J .
HALL J : I agree with the reasons and orders proposed by Harrison J.
HARRISON J : The applicant was found guilty after a trial of malicious wounding with intent to inflict grievous bodily harm. This is an offence contrary to the provisions of s 33(1)(a) of the Crimes Act 1900 . The maximum penalty for this offence is 25 years imprisonment with a standard non-parole period of 7 years.
The victim of the offence was Carlos Sawa. The applicant was originally indicted on two charges including a charge of malicious wounding of the victim's brother Laurence Sawa. He was acquitted of that charge. Both offences were alleged to have occurred on 25 February 2006 during the course of a melee at Fairfield.
His Honour Nicholson DCJ sentenced the applicant on 18 January 2010 to a non-parole period of 3 years to commence on that date with a balance of term of three years. (There is…
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- AGLC
- Shaba v The Queen [2011] NSWCCA 154
- Case
- [2011] NSWCCA 154
- Decision Date
CaseChat Overview and Summary
The court considered the sentencing principles applicable to the charges and the principles of parity in sentencing. The appeal centred on the interpretation of the relevant statutory provisions and whether the sentencing judge had discretion to order the sentence to commence earlier. The court examined the reasoning provided by the sentencing judge and concluded that there had been an error in not backdating the sentence to the date of the appellant's first detention. The court found that the judge had incorrectly applied the statutory provisions and had not exercised the available discretion to backdate the sentence.
Having found that the sentencing judge had erred, the court allowed the appeal in part and ordered that the sentence be backdated by one month and thirteen days. The court did not find merit in the argument that a different sentence should have been imposed. The appeal was thus partially successful, resulting in the sentence being adjusted by the specified period. The decision clarified the proper application of sentencing provisions in similar cases, ensuring that the discretion available to judges is exercised correctly.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BATHURST CJ, HALL J, HARRISON J
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