Shalida v The King

Case [2024] NSWCCA 55


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Shalida v R [2024] NSWCCA 55
Hearing dates: 8 March 2024
Date of orders: 29 April 2024
Decision date: 29 April 2024
Before: Gleeson JA at [1]
Rothman J at [105]
Cavanagh J at [106]
Decision:

(1)   Grant leave to appeal.

(2)   Appeal dismissed.

(3) Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), the applicant’s sentence is to recommence on 29 April 2024.

(4) The Court notes for the purposes of s 18(2) of the Criminal Appeal Act that the period of 353 days, being from 12 May 2023 to 28 April 2024 (inclusive of those dates), does not count as part of the sentence of imprisonment imposed in the District Court on 4 November 2022.

(5) The Court further notes for the purpose of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that:

(a)   the sentence recommences on 29 April 2024;

(b) pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the applicant be released on 16 January 2025 after having served 15 months in total, on entering into a recognizance in the sum of $2,000 without surety to be of good behaviour for a period of 3 years from 16 January 2025; and

(c)   the sentence will now expire on 16 April 2026, and the good behaviour period will expire on 16 January 2028.

Catchwords:

CRIME — Drug offences — Commonwealth offence — Attempted possession of unlawfully imported drug — Where offender attempted possession of cocaine concealed in mail consignment

SENTENCING — Appeal against sentence — Application for leave to appeal — Sentence by State court for offence against Commonwealth law — Whether sentencing judge misapplied principles relating to utilitarian discount for guilty plea — Whether sentencing judge failed to consider relevant factors — Whether sentencing judge erred in findings concerning prospects of rehabilitation and likelihood of reoffending

APPEALS — Power to receive further evidence — Whether court should admit new or fresh evidence — Whether new evidence relating to alleged incomplete or inaccurate pre-sentence report admissible — Where alleged incompetent legal representation — Whether new evidence of reasons for guilty plea admissible — Where no challenge to conviction

SENTENCING — Appeal against sentence — Manifest excess — Relevance of comparative sentences — Whether sentence imposed exceeds the bounds of proper sentencing discretion

SENTENCING — Appeal against sentence — Powers of court — Power to adjust sentence to account for time spent on bail pending appeal — Where appeal dismissed and original sentence upheld

Legislation Cited:

Crimes Act 1914 (Cth), Pt 1B - ss 16A, 16BA, 17A, 20(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 48

Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 18(2), 28A

Criminal Code Act 1995 (Cth), ss 11, 307.2, 307.6

Criminal Procedure Act 1986 (NSW), s 166

Drug Misuse and Trafficking Act 1985 (NSW), s 10

Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases Cited:

Ahmad v R [2006] NSWCCA 177

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Shalida v The King [2024] NSWCCA 55
Case
[2024] NSWCCA 55
Decision Date

CaseChat Overview and Summary

The case of Shalida v The King involved the appellant, Shalida, who was convicted of attempting to possess unlawfully imported cocaine. The dispute was brought before the High Court of Australia, which had to determine whether the sentencing judge misapplied the principles concerning the utilitarian discount for a guilty plea, failed to consider relevant factors, and erred in assessing the prospects of rehabilitation and likelihood of reoffending. The court also needed to decide if the sentencing judge's decision to not admit new evidence was appropriate, particularly given the appellant's claims of incompetent legal representation and an allegedly inaccurate pre-sentence report. Furthermore, the court was required to assess whether the sentence imposed was manifestly excessive, taking into account the powers of the court to adjust the sentence for time spent on bail pending appeal.

The legal issues before the court were centred on the principles of sentencing, particularly the discount for a guilty plea, the consideration of relevant factors, and the assessment of rehabilitation and reoffending prospects. The court also had to consider the admissibility of new evidence and whether the sentencing judge erred in not admitting it, given the appellant's claims of inadequate legal representation and an incomplete or inaccurate pre-sentence report. The final issue was whether the sentence imposed was manifestly excessive, taking into account the court's powers to adjust the sentence for time spent on bail pending appeal.

The court found that the sentencing judge did not misapply the principles relating to the utilitarian discount for a guilty plea, and the judge had considered all relevant factors in imposing the sentence. The court held that the sentencing judge had not erred in their findings concerning the appellant's prospects of rehabilitation and likelihood of reoffending. The court determined that it was not appropriate to admit new evidence, as the appellant had not challenged the conviction and the new evidence was not relevant to the sentencing decision. Finally, the court held that the sentence imposed did not exceed the bounds of proper sentencing discretion and that there was no need to adjust the sentence for time spent on bail pending appeal.

The High Court of Australia dismissed the appeal and upheld the original sentence imposed by the sentencing judge.

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

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