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Court of Criminal Appeal 23 December 2025

Al Shamari v R

[2025] NSWCCA 236

Fraud & dishonestyPublic order & justice offences
CRIME APPEAL APPEAL AGAINST SENTENCE PAROLE PERIOD AND HEAD SENTENCE

Citation: Al Shamari v R [2025] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 23 December 2025
Judges: Ward P; Adamson JA; R A Hulme AJ

Background

The applicant was convicted after a judge alone trial of one count of dishonestly destroying property by fire for financial gain, contrary to s 197(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years' imprisonment. The Crown case was that the applicant masterminded a scheme to burn down her investment property in South Granville in order to claim on her insurance policy and pave the way for a lucrative redevelopment.

The sentencing judge found that the applicant directed her co-accused to recruit two juveniles to set fire to the property, which was destroyed on 10 August 2021. The applicant was not physically present during the fire, but the sentencing judge found she was the architect of the plan, motivated by financial gain including both an insurance payout and the prospect of redeveloping the site, potentially expanding it by pressuring a neighbour to sell.

On 20 September 2024, the applicant was sentenced to 6 years' imprisonment, with a non-parole period of 4 years. Importantly, this sentence was partially accumulated upon a separate existing sentence the applicant was already serving. The sentencing judge made a finding of special circumstances (meaning the statutory minimum ratio between non-parole period and head sentence could be adjusted), and reduced the non-parole period accordingly.

  • Whether the sentencing judge erred by failing to give practical effect to the finding of special circumstances, having regard to the overall effective sentence rather than only the sentence imposed for this offence.

Decision

The sole ground of appeal was that the sentencing judge found special circumstances but did not translate that finding into a meaningful benefit for the applicant when the overall custodial exposure was considered. The applicant argued that, looked at in totality, the sentence failed to reflect the purpose behind the special circumstances finding.

The Court rejected this argument. Ward P, with whom Adamson JA and R A Hulme AJ agreed, held that the sentencing judge's reasons, read with appropriate latitude given they were delivered ex tempore, showed that his Honour had clearly intended the effect of the special circumstances finding to operate on the total effective sentence. The adjustment of 6 months to the non-parole period was deliberately calibrated to achieve an overall non-parole period of approximately 75% of the total term, taking into account the existing sentence.

Adamson JA added that, had the sentencing judge not made a finding of special circumstances, the statutory ratio would have applied to the individual sentence and the applicant would have been required to serve an additional 6 months in custody. The finding of special circumstances therefore did carry practical effect: it reduced the custodial portion of the actual sentence to ensure the combined period of custody represented roughly 75% of the combined total term. No error of the kind identified in House v The King was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where a sentencing judge imposes a sentence that is partially accumulated on an existing sentence, the practical effect of a special circumstances finding may properly be assessed by reference to the total effective sentence rather than the individual sentence in isolation.
  • A finding of special circumstances does not mandate a formulaic reduction to the individual sentence's non-parole period; the sentencing court may use the finding as a tool to achieve an appropriate overall ratio across an accumulated sentence structure.
  • No House v The King error arises where it is apparent from the sentencing judge's reasons, read with appropriate latitude, that the intended effect of the special circumstances finding was to produce a suitable total period of supervision in the community.
  • Ex tempore sentencing remarks are to be read with a degree of latitude when considering whether the sentencing judge has given effect to a finding of special circumstances.
  • In dismissing the appeal, the Court confirmed that the purpose of a special circumstances finding, being to allow for extended supervision in the community, can be achieved by adjusting the structure of an accumulated sentence overall, not merely by altering the ratio within the discrete sentence under appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 197(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Abed v R [2025] NSWCCA 223
- Bugmy v The Queen (2014) 249 CLR 571; [2014] HCA 37
- Caristo v R [2011] NSWCCA 7
- Dungay v R [2020] NSWCCA 209
- Dunshea v R [2016] NSWCCA 244
- El-Ahmad v R [2015] NSWCCA 65
- Hardey v R [2019] NSWCCA 310
- Islam v R [2020] NSWCCA 236
- Jiang v R [2010] NSWCCA 277
- Jones (a pseudonym) v R [2025] NSWCCA 29
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lonsdale v R [2020] NSWCCA 267
- MD v R [2015] NSWCCA 37
- R v Boney [2001] NSWCCA 432
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Trad v R [2009] NSWCCA 56; (2009) 194 A Crim R 20
- Woods v R [2020] NSWCCA 219