Sowaid v The Queen - [2011] NSWCCA 177

Court of Criminal Appeal

New South Wales

Case Title: Sowaid v R

Medium Neutral Citation: [2011] NSWCCA 177

Hearing Date(s): 28 July 2011

Decision Date: 08 August 2011

Jurisdiction:

Before:
Basten JA at 1, Simpson J at 2, Garling J at 49

Decision:
1. Grants the applicant an extension of time within which to seek leave to appeal against her sentence.
2. Grants leave to appeal.
3. Dismiss the appeal.

Catchwords:
CRIMINAL LAW - application for leave to appeal against severity of sentence - verdict following jury trial - two counts doing an act with intention of dishonestly causing a loss to a Commonwealth entity - importation of tobacco - false declarations made to avoid customs duty payable - offences premeditated and committed for financial gain - family hardship - exceptional circumstances not established - no error in assessment of objective gravity - application for extension of time allowed - leave granted - appeal dismissed

Legislation Cited:
Crimes Act 1914
Criminal Code

Cases Cited:
Markovic v R; Pantelic v R [2010] VSCA 105
Mokhaiver v R [2011] NSWCCA 10
R v Luong [2000] NSW CCA 139
R v Tiki (CCA, NSW, 24 August 1994, unreported)
R v Togias [2001] NSWCCA 522; 128 Crim R 23

Texts Cited:

Category: Principal judgment

Parties:
Nada Sowaid (Applicant)
Regina (Respondent)

Representation

- Counsel:
Counsel
Hament Dhanji SC (Applicant)
Neil Adams (Crown)

- Solicitors:
Solicitor
Warren F Ball & Co (Applicant)
Commonwealth DPP (Respondent)

File number(s): 2009/15207; 2009/112220

Decision Under Appeal

- Court / Tribunal:

- Before: King DCJ

- Date of Decision: 03 September 2010

- Citation: [2010] NSWDC 193

- Court File Number(s) 2009/15207; 2009/112220

Publication Restriction:

Judgment

BASTEN JA : This matter was heard on 28 July 2011. The applicant required an extension of time within which to file her application for leave to appeal against sentence. At the completion of the hearing, the Court made orders in the terms set out by Simpson J at [3] below. I agree with her Honour's reasons.

SIMPSON J : The applicant sought an extension of time in which to file an application for leave to appeal against the severity of sentences imposed upon her in the District Court, following her conviction, after jury trial, of two counts of doing an act with the intention of dishonestly causing a loss to a Commonwealth entity. By s 135.1(3) of the Criminal Code each offence exposed the applicant to a maximum penalty of imprisonment for five years.

At the conclusion of the hearing of the application on 28 July 2011, the court made the following orders:

1. Grants the applicant an extension of time within which to seek leave to appeal against her sentence.

2. Grants leave to appeal.

3. Dismiss the appeal.

4. The Court reserves it reasons.

What follows are my reasons for joining in those orders.

On 3 September 2010, King DCJ sentenced the applicant to two terms of imprisonment of 2 years and 6 months, specifying that the first was to commence…

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 Sowaid v The Queen

Details

AGLC: Sowaid v The Queen [2011] NSWCCA 177
Case: [2011] NSWCCA 177
Decision Date: 08 August 2011

CaseChat Overview and Summary

The case involved Sowaid, the appellant, against The Queen, the respondent. The dispute was an application for leave to appeal against the severity of a sentence imposed following a jury trial where the appellant was convicted on two counts of engaging in an act with the intention of dishonestly causing a loss to a Commonwealth entity. The offences related to the importation of tobacco with false declarations made to evade the payment of customs duty. The appellant's argument for appeal was based on the severity of the sentence and the presence of family hardship. The court was tasked with determining whether there was any error in the assessment of the objective gravity of the offences and whether the exceptional circumstances warranted a review of the sentence.

The court examined the nature and circumstances of the offences, concluding that they were premeditated and committed for financial gain. The court considered the principles of sentencing and the objective gravity of the offences, finding no error in the trial judge's assessment. The appellant's argument regarding family hardship was reviewed, but the court found that these circumstances did not qualify as exceptional in the context of the appeal against the severity of sentence. Additionally, the court allowed an application for an extension of time for the appellant to file the application for leave to appeal.

The court granted leave for the appeal but ultimately dismissed it, upholding the original sentence. The court found that the sentence was proportionate to the seriousness of the offences and that the exceptional circumstances did not justify a reduction in the sentence. The appeal was dismissed, and the original sentence was affirmed.

Orders