Fahmy v R [2021] NSWCCA 112

Fahmy v R [2021] NSWCCA 112

Leave and an extension of time were refused because the sentencing judge had expressly taken into account the total 551 days in custody, which included the 53-day period relied on by the applicant, and because the proposed additional evidence of dysfunction and disadvantage was not fresh in any relevant sense and contradicted the case presented before the sentencing judge that the applicant came from a good and supportive family. No error was shown in the sentencing judge's approach to backdating or in not addressing Bugmy principles, as there was no evidence before the sentencing judge supporting their invocation.

Jurisdiction
Australia
Judgment Date
04 June 2021
Procedural Posture
Application for Extension of Time to Seek Leave to Appeal Against Sentence and Application for Leave to Appeal Against Sentence Under S 5(1)(c) of the Criminal Appeal Act 1912 / Court of Criminal Appeal Application From Sentence Imposed in the District Court on 28 August 2019
Outcome
Application for extension of time to seek leave to appeal against sentence refused; leave to appeal against sentence refused.
Legal Topics
['extension of Time' 'leave to Appeal Against Sentence' 'pre Sentence Custody' 'backdating Sentence' 'additional Evidence on Sentence Appeal' 'bugmy Principles' 'dysfunctional Family Background']
['criminal Law' 'sentencing' 'criminal Appeals'] ['extension of Time' 'leave to Appeal Against Sentence' 'pre Sentence Custody' 'backdating Sentence' 'additional Evidence on Sentence Appeal' 'bugmy Principles' 'dysfunctional Family Background']

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Procedural Posture

Application for Extension of Time to Seek Leave to Appeal Against Sentence and Application for Leave to Appeal Against Sentence Under S 5(1)(c) of the Criminal Appeal Act 1912 / Court of Criminal Appeal Application From Sentence Imposed in the District Court on 28 August 2019

Legal Issues

  1. 1 ['Whether the sentencing judge failed to take into account 53 days spent in custody from 20 January 2018 to 14 March 2018 on charges later dismissed or withdrawn.' 'Whether the applicant should be permitted to adduce additional evidence on appeal concerning social disadvantage, dysfunctional family background and Bugmy principles.' "Whether any error was shown in the sentencing judge's failure to address Bugmy principles."]

Ratio Decidendi

Leave and an extension of time were refused because the sentencing judge had expressly taken into account the total 551 days in custody, which included the 53-day period relied on by the applicant, and because the proposed additional evidence of dysfunction and disadvantage was not fresh in any relevant sense and contradicted the case presented before the sentencing judge that the applicant came from a good and supportive family. No error was shown in the sentencing judge's approach to backdating or in not addressing Bugmy principles, as there was no evidence before the sentencing judge supporting their invocation.

Court Disposition

Application for extension of time to seek leave to appeal against sentence refused; leave to appeal against sentence refused.

Orders

  • ['Application for extension of time to seek leave to appeal against sentence refused.' 'Leave to appeal against sentence refused.']