AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 22 August 2025

Abdaly v R

[2025] NSWCCA 127

DrugsFraud & dishonestyFirearms & weaponsPublic order & justice offences

Citation: Abdaly v R [2025] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 22 August 2025
Judge(s): Bell CJ, Price AJA, Ierace J (unanimous)

Background

The applicant was a senior member of an organised criminal group, the Sultani criminal group, which operated out of the Burwood Chapter of the Rebels Outlaw Motorcycle Group and engaged in drug supply, firearms trafficking, fraud, and other serious offending. He was arrested in November 2016 and, after an unusually lengthy period on remand of approximately five years and one month (excluding six months attributable to an unrelated matter), was sentenced in the District Court on 24 November 2023.

The sentencing judge imposed two separate aggregate sentences. The first, a fixed aggregate term of five years for drug supply offences (methylamphetamine and MDMA), was backdated to commence on 27 December 2017 and had already expired by the date of sentencing. The second, covering participation in a criminal group and supply of a small quantity of cannabis, was an aggregate term of two years and six months commencing on the date of sentence, ordered to be served by way of an Intensive Correction Order (ICO).

The applicant sought leave to appeal out of time against the second sentence only. The delay in filing was attributed to the conduct of the applicant's former and current solicitors, and the Crown was not prejudiced. Leave to appeal out of time was granted.

  • Whether the sentencing judge failed to take into account the full extent of the applicant's pre-sentence custody, as required by s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether, in deciding to impose an ICO under s 66(3) of that Act, the sentencing judge failed to account for the full period of pre-sentence custody
  • Whether the decision to impose the ICO was plainly unjust or unreasonable in all the circumstances

Decision

On the first ground, Ierace J (with Bell CJ and Price AJA agreeing) found that a full and fair reading of the remarks on sentence showed the sentencing judge expressly acknowledged that the applicant's entire period on remand would be taken into account. There was no failure to consider the pre-sentence custody as required by s 24(a).

On the second ground, the Court held it was inappropriate to assess each aggregate sentence in isolation. Viewed in combination, and in light of the sentencing judge's stated objective of fashioning a structure that addressed both the lengthy remand and the desirability of the applicant remaining in the community to support his rehabilitation, no error was disclosed. The imposition of the ICO was consistent with the obligations arising from ss 66(1) and 66(2) of the Sentencing Act.

On the third ground, the Court was satisfied the ICO was not unjust or unreasonable. The sentencing judge's use of two discrete aggregate sentences, rather than one overall aggregate sentence, was characterised as a flexible and legitimate exercise of sentencing discretion. That structure allowed the sentencing judge to give full credit for the pre-sentence custody while also keeping the applicant in the community to consolidate his rehabilitation.

The appeal was dismissed.

Orders Made

  • Leave to appeal out of time granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing remarks must be read as a whole: an isolated passage cannot establish a failure to account for pre-sentence custody if the remarks, read fairly and fully, show the sentencing judge was alive to the entire remand period.
  • Where a sentencing judge imposes two discrete aggregate sentences as part of a deliberately structured sentencing exercise, the appropriate appellate approach is to assess both sentences in combination rather than to evaluate each independently.
  • Under s 47 of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge retains a degree of flexibility in how pre-sentence custody is reflected in a sentence structure, including through backdating and the sequencing of multiple aggregate sentences.
  • The Court confirmed that the principle of totality applies across multiple aggregate sentences, and satisfaction of that principle is assessed by considering the overall sentencing structure rather than individual components in isolation.
  • No error was established merely because an unusually long remand period did not result in a custodial term commencing from the date of sentence; an ICO imposed as part of a broader structure that fully credits pre-sentence custody may be appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T(1), 93X(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 24(a), 45(1)(c), 47, 47(3), 66, 66(1), 66(2), 66(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Fuller v R [2023] NSWCCA 282
- Kaddour v R [2017] NSWCCA 294
- Kaderavek v R [2018] NSWCCA 92
- Kljaic v R [2023] NSWCCA 225
- McMillan v R [2024] NSWCCA 83
- Miller v R [2023] NSWCCA 267
- RO v R [2019] NSWCCA 183