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Court of Criminal Appeal 12 October 2026

Eljamal v R

[2026] NSWCCA 155

Assault & violenceFirearms & weaponsDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Eljamal v R [2026] NSWCCA 155
Court: Court of Criminal Appeal
Date: 12 October 2026
Judge(s): Leeming JA (primary reasons); Fagan J and Cavanagh J (agreeing)

Background

The applicant pleaded guilty in the District Court to causing grievous bodily harm recklessly and using a pistol without authorisation after he discharged a firearm in the garage of his home, sending a bullet through the ceiling and into his wife as she lay in bed above. The shooting left her a permanent paraplegic with no sensory or motor function below the tenth thoracic vertebra. After driving her to hospital, the applicant fled, returned to the house, and cleaned the crime scene.

The applicant was sentenced to an aggregate term of 7 years imprisonment with a non-parole period of 4 years and 3 months. He sought leave to appeal on a single ground: that the sentencing judge failed to give proper weight to his wife's evidence about the ongoing hardship she suffered as a result of his imprisonment.

His wife had provided an affidavit and a letter to the court expressing deep forgiveness, describing her complete physical dependence on others for daily care, and expressing her wish for the applicant to return home to assist her. The sentencing judge acknowledged her attitude but found it could not interfere with a proper sentencing exercise.

Legal Issues

  • Whether the sentencing judge erred by failing to give sufficient consideration to the wife's evidence concerning the ongoing hardship she suffered as a consequence of the applicant's imprisonment.
  • Whether s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which identifies recognition of "harm done to the victim" as a sentencing purpose, extends to harm suffered by a victim as a consequence of the offender's imprisonment rather than as a direct consequence of the offence.
  • Whether the hardship to the wife met the threshold of being "highly exceptional" so as to justify leniency in sentencing.

Decision

Failure to consider the wife's evidence:

The Court found no appellable error in the sentencing judge's treatment of the wife's evidence. To establish error for failure to consider evidence, a party must ordinarily have directed the sentencing judge to that evidence: the principles from Hanna v Environment Protection Authority [2019] NSWCCA 299 applied (at [50]-[52]). Here, the applicant's counsel at sentence had given minimal attention to the detail of the wife's evidence in written or oral submissions and had explicitly disavowed reliance on it to reduce the length of the sentence, confining it instead to an argument about the ratio between the non-parole period and the total term (at [40], [53]-[55]). The Court of Criminal Appeal is a court of error, and it is very difficult to identify error in failing to take evidence into account when counsel at the sentencing hearing positively contended that the evidence did not affect the length of sentence (at [56]).

Whether the hardship was "highly exceptional":

The Court also rejected the factual premise of the appeal. The applicant had no track record of caring for his wife: during the entirety of their relationship he was either on parole, abusing drugs, or in custody or rehabilitation. He did not plead guilty until the week of trial, some two years after the offending. An apprehended violence order, which at one point he breached, had prevented him from approaching his wife. In those circumstances, it was amply open to find that the claimed hardship did not reach the threshold of being "highly exceptional" (at [57]).

Scope of s 3A(g):

The Court rejected the submission that s 3A(g) required the sentencing judge to take into account harm suffered by the victim as a consequence of the offender's imprisonment. The "harm done to the victim" referred to in that provision is the physical and psychological harm caused by the offence itself, not indirect hardship arising from the offender's incarceration (at [63]). Reading the Act as a whole, ss 21A(2)(g) and 21A(3)(a) both refer to harm caused by the offence, confirming this construction (at [65]). Accepting the applicant's submission would also subvert the well-settled principle, endorsed in R v Edwards (1996) 90 A Crim R 510 and affirmed in later Court of Criminal Appeal authority, that leniency on the basis of hardship to dependants is permissible only where that hardship is "highly exceptional" (at [67]-[68]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Section 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which identifies recognition of "harm done to the victim" as a sentencing purpose, refers to harm directly caused by the offence, not to hardship a victim may suffer as a consequence of the offender being imprisoned (at [63], [65]).

  • Long-standing sentencing principle confirms that leniency on account of hardship suffered by an offender's dependants is available only where that hardship is "highly exceptional"; the Court of Criminal Appeal reaffirmed this threshold and rejected any suggestion that s 3A(g) operates as a gloss or alternative to it (at [67]-[68]).

  • A ground of appeal based on the sentencing judge's failure to consider particular evidence faces a high bar where counsel at the original hearing did not direct the judge to that evidence in any detail (at [50]-[52]).

  • In dismissing the appeal, the Court emphasised that an appellate court of error cannot readily find error in a sentencing judge's treatment of evidence when counsel below positively contended that the same evidence had no bearing on the length of the sentence (at [55]-[56]).

  • No track record of the offender actually providing care to the victim, combined with bail conditions and an apprehended violence order that had prevented any such assistance during periods of liberty, supported the finding that the claimed hardship was not exceptional (at [57]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 30E
- Crimes Act 1900 (NSW), s 35(2)
- Criminal Appeal Act 1912 (NSW) , s 5
- Firearms Act 1996 (NSW), s 7

Cases
- Hanna v Environment Protection Authority [2019] NSWCCA 299; (2019) 280 A Crim R 575
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Matthews v R; New v R [2018] NSWCCA 186
- O’Brien v R [2022] NSWCCA 234
- R v Edwards (1996) 90 A Crim R 510
- R v Wirth (1976) 14 SASR 291
- Taitoko v R [2020] NSWCCA 43