Rizk v R [2020] NSWCCA 291

Rizk v R [2020] NSWCCA 291

Leave to appeal was granted because the grounds were arguable, but the appeal was dismissed. The erroneous statement that the Form 1 possession offence carried a two-year maximum penalty was immaterial and had no material bearing on the indicative sentence for count 1 or the aggregate sentence, given the correct maximum was identified at the hearing, the error appeared only once, the offence was only a Form 1 matter, and the principal and other offences carried much higher maximum penalties. The sentencing judge did not err in commencing the aggregate sentence on 6 January 2019, as he was aware of the custody served after revocation of the ICO and it was open to treat that period as...

Jurisdiction
Australia
Judgment Date
06 November 2020
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sentence Appeal' 'form 1 Offences' 'incorrect Maximum Penalty' 'aggregate Sentence' 'intensive Correction Order Revocation' 'commencement Date of Sentence' 'special Circumstances' 'non Parole Period']
['criminal Law' 'sentencing'] ['sentence Appeal' 'form 1 Offences' 'incorrect Maximum Penalty' 'aggregate Sentence' 'intensive Correction Order Revocation' 'commencement Date of Sentence' 'special Circumstances' 'non Parole Period']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred by proceeding on the basis that the maximum penalty for the possess prescribed restricted substance Form 1 offence was two years imprisonment rather than six months.' "Whether, when fixing the commencement date for the aggregate sentence, the sentencing judge erred by failing to consider the applicant's earlier period of custody resulting from revocation of an intensive correction order." 'Whether the sentencing judge erred in failing to find special circumstances and in setting the non-parole period.']

Ratio Decidendi

Leave to appeal was granted because the grounds were arguable, but the appeal was dismissed. The erroneous statement that the Form 1 possession offence carried a two-year maximum penalty was immaterial and had no material bearing on the indicative sentence for count 1 or the aggregate sentence, given the correct maximum was identified at the hearing, the error appeared only once, the offence was only a Form 1 matter, and the principal and other offences carried much higher maximum penalties. The sentencing judge did not err in commencing the aggregate sentence on 6 January 2019, as he was aware of the custody served after revocation of the ICO and it was open to treat that period as...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant the applicant leave to appeal.' 'The appeal is dismissed.']