Regina v Amir Ibrahim El Mostafa [2007] NSWDC 220

Regina v Amir Ibrahim El Mostafa [2007] NSWDC 220

Because the riot occurred on 29 January 2005, when the maximum penalty for riot was ten years, the original sentence was contrary to law insofar as it was imposed by reference to a fifteen-year maximum that did not take effect until 15 December 2005. Under s 43 of the Crimes (Sentencing Procedure) Act 1999, the court reopened the proceedings and imposed a lawful adjusted sentence for riot by reducing the original head sentence and non-parole period by one third.

Jurisdiction
Australia
Judgment Date
21 September 2007
Procedural Posture
Criminal Sentence Correction Application / Application Under S 43 of the Crimes (sentencing Procedure) Act 1999 to Correct Sentence After Original Sentencing
Outcome
Application allowed; sentence for riot corrected and other sentence commencement and expiry dates amended.
Legal Topics
['sentence Correction' 'riot' 'maximum Penalty' 'non Parole Period' 'assault Occasioning Actual Bodily Harm' 'maliciously Inflicting Grievous Bodily Harm']
['criminal Law' 'sentencing'] ['sentence Correction' 'riot' 'maximum Penalty' 'non Parole Period' 'assault Occasioning Actual Bodily Harm' 'maliciously Inflicting Grievous Bodily Harm']

Case Brief

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Procedural Posture

Criminal Sentence Correction Application / Application Under S 43 of the Crimes (sentencing Procedure) Act 1999 to Correct Sentence After Original Sentencing

Legal Issues

  1. 1 ['Whether the sentence imposed for riot was contrary to law because the court was guided by an incorrect maximum penalty of fifteen years rather than the ten-year maximum applicable when the offence was committed.' 'Whether the sentence for riot should be adjusted, and whether commencement and expiry dates for sentences on the other counts should be amended.']

Ratio Decidendi

Because the riot occurred on 29 January 2005, when the maximum penalty for riot was ten years, the original sentence was contrary to law insofar as it was imposed by reference to a fifteen-year maximum that did not take effect until 15 December 2005. Under s 43 of the Crimes (Sentencing Procedure) Act 1999, the court reopened the proceedings and imposed a lawful adjusted sentence for riot by reducing the original head sentence and non-parole period by one third.

Court Disposition

Application allowed; sentence for riot corrected and other sentence commencement and expiry dates amended.

Orders

  • ['In respect of count one, riot, pursuant to s 43(2)(a) of the Crimes (Sentencing Procedure) Act 1999, sentence of five years and four months imprisonment imposed, with a non-parole period of two years and eight months commencing on 29 July 2005 and expiring on 28 March 2008, and the balance of the term of two years...