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.
(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
[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.
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AGLC
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.