Al Shamari v R [2024] NSWCCA 155

Al Shamari v R [2024] NSWCCA 155

Ground 4 was made out because the dispute about the number and nature of physical assaults by the applicant was material to objective seriousness and sentencing, yet the sentencing judge did not give adequate reasons for resolving that factual dispute, including any reliance on Mr Mirnezami's earlier agreed facts despite his later distancing from them. Ground 1 was not made out because the materials, submissions, exchanges and absence of anything suggesting a lower standard did not show that the sentencing judge failed to apply proof beyond reasonable doubt. Ground 2 was not made out because the better view was that the sentencing judge's reference to planning concerned Wafaa, and...

Jurisdiction
Australia
Judgment Date
19 August 2024
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence From the District Court; Leave Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['aggravated Kidnapping in Company' 'standard of Proof in Sentencing Fact Finding' 'adequacy of Reasons' 'parity Between Co Offenders' 'objective Seriousness' 'resentencing by Court of Criminal Appeal']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravated Kidnapping in Company' 'standard of Proof in Sentencing Fact Finding' 'adequacy of Reasons' 'parity Between Co Offenders' 'objective Seriousness' 'resentencing by Court of Criminal Appeal']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence From the District Court; Leave Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether the sentencing judge applied the correct standard of proof to disputed facts on sentence.' 'Whether the sentencing judge erred in finding that the applicant was involved in planning the offending conduct.' "Whether the sentencing judge gave inadequate or no reasons for findings about the applicant's criminality relative to Mr Mirnezami." 'Whether the sentence created a justifiable sense of grievance by comparison with the sentence imposed on Mr Mirnezami.' 'Whether any lesser sentence was warranted on resentencing.']

Ratio Decidendi

Ground 4 was made out because the dispute about the number and nature of physical assaults by the applicant was material to objective seriousness and sentencing, yet the sentencing judge did not give adequate reasons for resolving that factual dispute, including any reliance on Mr Mirnezami's earlier agreed facts despite his later distancing from them. Ground 1 was not made out because the materials, submissions, exchanges and absence of anything suggesting a lower standard did not show that the sentencing judge failed to apply proof beyond reasonable doubt. Ground 2 was not made out because the better view was that the sentencing judge's reference to planning concerned Wafaa, and...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Appeal dismissed.']