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Court of Criminal Appeal 20 June 2025

Abdallah v R

[2025] NSWCCA 98

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE NO ERROR ESTABLISHED CRIME APPEALS APPEALS AGAINST SENTENCE

Citation: Abdallah v R [2025] NSWCCA 98
Court: Court of Criminal Appeal, New South Wales
Date: 20 June 2025
Judges: Kirk JA; Davies J; Wright J (judgment delivered by Wright J, with Kirk JA and Davies J agreeing)

Background

The applicant pleaded guilty in the District Court to recklessly causing grievous bodily harm arising from an incident at a local football game on 28 April 2023. The victim, a linesman, had struck the applicant on the head with the wrist-brace end of his flag during a verbal altercation, causing the applicant to fall to the ground. The applicant then inflicted grievous bodily harm on the victim. The incident was captured on video.

The applicant had originally been charged with the more serious offence of causing grievous bodily harm with intent. He offered to plead guilty to the lesser, alternative offence in the Local Court, but that offer was not accepted at that stage. The plea was ultimately accepted at a District Court "super callover" (a case management hearing designed to resolve matters efficiently before trial), and the applicant received a 25% discount on sentence as a result. He was sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year and 2 months.

The applicant sought leave to appeal the sentence on two grounds: that the sentencing judge wrongly assessed the victim's provocative conduct, and that the judge failed to address a submission that the plea had facilitated the administration of justice beyond the utilitarian value already recognised.

  • Whether the sentencing judge erred by finding that the victim's provocative conduct did not significantly mitigate the objective seriousness of the offending.
  • Whether the sentencing judge erred by failing to address a submission that the applicant was entitled to a further reduction in sentence under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) because entry of the plea at the super callover facilitated the course of justice.

Decision

Ground 1: Provocation

The sentencing judge found that the victim's act of striking the applicant with the flag was provocative, but concluded that this did not significantly mitigate the objective seriousness of the offending. The Court of Criminal Appeal reviewed the agreed facts and watched the video recordings of the incident multiple times. All three judges concluded that the sentencing judge's assessment was well open on the evidence. No error was established.

Ground 2: Facilitation of justice

Under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may reduce a sentence beyond the discount for a guilty plea where an offender's conduct has facilitated the administration of justice. The applicant's submissions at the sentencing hearing raised the possibility of such a further discount in general terms but did not identify the specific factors or circumstances that were said to constitute facilitation distinct from the utilitarian value of the plea or evidence of remorse.

Wright J held that the sentencing judge had, in substance, addressed this issue. Her Honour noted the strength of the Crown case, including the video recordings, and concluded that the plea was largely a response to that evidence rather than a meaningful act of facilitation. The Court found this reasoning implicitly but adequately disposed of the facilitation submission. Because the defence had not identified particular facilitating factors at the hearing, the sentencing judge's treatment of the issue was not required to be extensive or detailed.

Leave to appeal was granted on both grounds, but the appeal was dismissed on both grounds.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's conclusion that the victim's provocative conduct did not significantly mitigate the objective seriousness of the offending, where that finding was supported by the agreed facts and video evidence.
  • Under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offender seeking a sentence reduction for facilitation of the administration of justice must identify, at the sentencing hearing, the specific factors or circumstances said to constitute facilitation, as distinct from the utilitarian value of the plea and any remorse.
  • Where defence submissions on facilitation are expressed in general terms only, the sentencing judge's obligation to address those submissions in detail is correspondingly limited.
  • A finding that a plea was largely a response to a strong Crown case supported by video evidence is capable of implicitly disposing of a facilitation claim, even without express reference to s 22A.
  • Appellate courts applying the House v The King (1936) 55 CLR 499 standard will not interfere with findings of fact made by a sentencing judge where those findings were open on the evidence as a whole.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- BAP v R [2024] NSWCCA 206
- Bhatt v R [2024] NSWCCA 214
- Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
- Finnigan v R [2022] NSWCCA 181
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Baker [2000] NSWCCA 85
- R v Mendez [2002] NSWCCA 415
- Vaiusu v R [2017] NSWCCA 71
- Yang v R [2012] NSWCCA 49