Citation: Al Shamari v R [2024] NSWCCA 155
Court: Court of Criminal Appeal, NSW
Date: 19 August 2024
Judges: Kirk JA (with Campbell J and McNaughton J agreeing)
Background
The applicant was found guilty by a jury of aggravated kidnapping (in company) under s 86(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 20 years. The offence arose from an incident in which the victim, who had entered a business arrangement with the applicant's sister, was detained and subjected to serious threats and physical assault by the applicant and three co-offenders. The applicant became involved approximately halfway through the victim's ordeal.
The sentencing judge (Herbert DCJ) imposed a term of 3 years and 9 months with a non-parole period of 2 years and 3 months, commencing 1 December 2022. A co-offender, Mr Mirnezami, had been sentenced separately by a different judge and received a shorter effective sentence, in part reflecting a guilty plea discount.
The applicant sought leave to appeal on four grounds, primarily challenging the sentencing judge's fact-finding process, the finding that the offending involved planning, the adequacy of reasons given for comparing his criminality with the co-offender's, and the fairness of the sentence relative to Mirnezami's.
Legal Issues
- Whether the sentencing judge erred in applying the standard of proof when finding facts adverse to the applicant at sentence (the criminal standard requires such facts to be proved beyond reasonable doubt).
- Whether the sentencing judge erred in finding that the applicant's offending involved planning.
- Whether the sentencing judge gave adequate reasons for finding that the applicant's criminality was slightly higher than Mirnezami's, including the factual basis for that conclusion.
- Whether the sentence gave rise to a justifiable sense of grievance when compared with the sentence imposed on Mirnezami (the parity principle).
Decision
Grounds 1 and 4 (standard of proof and adequacy of reasons): The Court found it would have been appropriate for the sentencing judge to explicitly acknowledge, where facts adverse to the applicant were in dispute, that those facts needed to be proved beyond reasonable doubt. That acknowledgment was absent. However, the Court declined to find error on this ground alone, noting the basal nature of the principle, that relevant materials before the judge had referred to it, and that nothing in the judgment indicated the judge had applied a lesser standard.
Ground 4 succeeded. The dispute about the number and nature of physical assaults the applicant perpetrated on the victim was a material factual issue directly affecting the sentencing exercise. The sentencing judge failed to give adequate reasons for how she resolved that dispute in favour of the Crown's account. The Court held this constituted a failure to comply with the legal duty to give adequate reasons.
Resentencing: Because the applicant's non-parole period was due to expire on 28 February 2025, the Court considered it necessary to resentence promptly rather than remit the matter to the District Court. On the facts as found by the Court of Criminal Appeal (which differed from the sentencing judge's findings but not substantially), the same sentence was warranted. The Court confirmed the applicant had committed significant physical assaults, threatened to kill the victim and his children, and threatened to cut off the victim's fingers, all in pursuit of financial advantage.
Ground 2 (planning) and Ground 3 (parity): The Court found the planning finding, properly understood, referred to the co-offender being sentenced at the same time and was not made against the applicant. The parity ground was rejected. The sentencing judge had given clear and careful reasons on parity. The applicant's criminality was somewhat higher than Mirnezami's, his subjective case was somewhat weaker, and but for Mirnezami's guilty plea discount, Mirnezami would have received a slightly longer head sentence. No justifiable sense of grievance arose.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
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Where facts adverse to an offender are in dispute at sentencing, it is appropriate for the sentencing judge to expressly acknowledge that those facts must be proved beyond reasonable doubt. Failure to do so is not necessarily reversible error, but the absence of any contrary indication in the judgment was a significant factor in allowing the appeal on this ground to fail.
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A sentencing judge bears a legal duty to give adequate reasons for findings of disputed facts that are material to the sentencing exercise. Failing to explain why one party's account of events was preferred over another's will constitute a reviewable error.
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In dismissing the parity complaint, the Court of Criminal Appeal confirmed that differences in non-parole period ratios between co-offenders can legitimately reflect different assessments of special circumstances, and do not automatically produce a justifiable sense of grievance.
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Where the expiry of a non-parole period is imminent, the Court of Criminal Appeal may resentence directly rather than remit to the original court, even when remittal might otherwise have been appropriate.
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No lesser sentence was warranted on resentencing where the applicant had perpetrated significant physical violence, made serious threats including to kill, and acted for financial advantage, even though he joined the offending partway through and the assaults did not cause actual bodily harm.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 86(2), 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(a)
Cases:
- Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656
- DL v The Queen [2018] HCA 26; (2018) 266 CLR 1
- Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604
- Kelly v R [2024] NSWCCA 101