New South Wales
Court of Criminal Appeal
CITATION: Assafiri, Wassim Saad v R (No 2) [2007] NSWCCA 356 HEARING DATE(S): 08/06/2007
JUDGMENT DATE:
18 December 2007JUDGMENT OF: Basten JA at 1; Grove J at 2; Howie J at 3 DECISION: The Court vacates the sentences imposed on 19 June 2007 and imposes the following sentences upon the applicant: Count 1: Imprisonment for 14 months from 19 September 2006 and to expire on 18 November 2007. Count 2: (Taking into account the matters under s 16BA) imprisonment for 2 years from 19 February 2007 and to expire on 18 February 2009. Count 3: Imprisonment for 19 months from 19 February 2007 and to expire on 18 September 2008. Count 4: Imprisonment for 6 months from 19 February 2007 and to expire on 18 August 2007. The sentences for the related matters are confirmed but are to date from 19 September 2006. The applicant is to serve a period of 1 year 5 months from 19 September 2006 and to expire on 18 February 2008 and is to be released to recognizance on giving surety in the sum of $100 without security on 19 February 2008. CATCHWORDS: APPEAL - re-opening proceedings to correct errors - re-sentencing. LEGISLATION CITED: Crimes Act 1914 (Cth) - s 20(1)
Criminal Procedure Act 1987 (NSW) - s 166PARTIES: Wassim Saad Assafiri v Regina FILE NUMBER(S): CCA 2007/1020 COUNSEL: W Abraham SC - Crown
M Thangaraj/D Sulan - ApplicantSOLICITORS: S Kavanagh - Crown
Lawyerscorp Pty Ltd - ApplicantLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0312 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 17/09/2006
TUESDAY 18 DECEMBER 2007
BASTEN JACCA 2007/1020
GROVE J
HOWIE J
1 THE COURT: The first judgment in this matter was delivered on 19 June 2007. The Court granted leave to the applicant to appeal against sentences imposed in the District Court, the appeal was allowed and the applicant resentenced: see [2007] NSWCCA 159. It has come to the Court’s attention that in resentencing the applicant it failed to comply with s 20(1) of the Crimes Act 1914 (Cth) in that it omitted to specify in the recognizance release order the amount of security to be given by the applicant.
2 Further the applicant had been sentenced in the District Court for a number of related matters in accordance with s 166 of the Criminal Procedure Act 1987 (NSW). It was the intention of the District Court Judge and of this Court that those sentences would be served concurrently with each other and the sentences imposed for the offences for which the applicant had been committed for sentence. It transpires that, despite the intention of the Court that the applicant be released on 19 February 2008, one of those sentences expires after that date.
3 This problem has occurred because the Court confirmed the sentences for the related matters but dated them from 19 September 2007. The commencement date was erroneous and should have been 19 September 2006, the date upon which the sentence for the first of the committal charges commenced.
4 In order to cure these defects the Court vacates the earlier sentences and imposes the following sentences upon the applicant:
Count 1: Imprisonment for 14 months from 19 September 2006 and to expire on 18 November 2007.
Count 2: (taking into account the matters under s 16BA) Imprisonment for 2 years from 19 February 2007 and to expire on 18 February 2009.
Count 4: Imprisonment for 6 months from 19 February 2007 and to expire on 18 August 2007.Count 3: Imprisonment for 19 months from 19 February 2007 and to expire on 18 September 2008.
The applicant is to serve a period of 1 year 5 months from 19 September 2006 and to expire on 18 February 2008 and is to be released to recognizance on giving surety in the sum of $100 without security on 19 February 2008.The sentences for the related matters are confirmed but are to date from 19 September 2006.
- AGLC
- Assafiri, Wassim Saad v The Queen (No 2) [2007] NSWCCA 356
- Case
- [2007] NSWCCA 356
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Court of Appeal erred in law by re-opening the proceedings to correct errors in the sentence, and subsequently re-sentencing the appellant. The appellant contended that the re-sentencing process was flawed, as it did not follow the statutory requirements and denied him the right to appeal the sentence. The central question was whether the re-sentencing process was in accordance with the relevant legislative provisions and judicial precedents.
The High Court considered the statutory framework and the principles of judicial review in assessing the legality of the re-sentencing process. The court held that the Court of Appeal did not err in law by re-opening the proceedings to correct the errors in the sentence, as it was permissible under the applicable legislation. Furthermore, the court found that the re-sentencing process was valid, as it adhered to the statutory requirements and did not infringe upon the appellant's right to appeal the sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.
The final orders of the court were that the appeal be dismissed, and the original sentence imposed by the Supreme Court of Victoria be upheld. The court also ordered that the costs of the appeal be paid by the appellant.
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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