Baladjam v R [2018] NSWCCA 304

Baladjam v R [2018] NSWCCA 304

Extension of time to appeal granted as explanation for delay was not challenged and grounds were arguable; however, the applicant and Mr Touma were not co-offenders and the parity principle did not apply; even if it did, the sentencing judge's finding that the applicant’s criminality was more serious was open and justified disparity. Additional evidence as to custodial conditions was inadmissible because it related to changes from executive action after sentence, not to misapprehension at original sentencing. The sentence imposed was not manifestly excessive given the objective seriousness of the offending and the applicable legal principles, and no error of principle was revealed.

Jurisdiction
Australia
Judgment Date
21 December 2018
Procedural Posture
Criminal Appeal / Appeal Against Sentence (application for Extension of Time, Leave, and Substantive Appeal)
Outcome
Appeal dismissed (sentence upheld); application for leave to appeal out of time granted; additional evidence rejected
Legal Topics
['sentencing' 'terrorism Offences' 'leave to Appeal Out of Time' 'parity Principle' 'manifest Excess in Sentencing' 'admissibility of Fresh Evidence on Appeal']
['criminal Law'] ['sentencing' 'terrorism Offences' 'leave to Appeal Out of Time' 'parity Principle' 'manifest Excess in Sentencing' 'admissibility of Fresh Evidence on Appeal']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Sentence (application for Extension of Time, Leave, and Substantive Appeal)

Legal Issues

  1. 1 ['Whether an extension of time to appeal should be granted to the applicant, nine years after sentence imposed' 'Whether applicant has an objectively justifiable sense of grievance due to disparity with sentence of Mr Mazen Touma' 'Whether additional evidence about harsher custodial conditions is admissible and capable of showing error by sentencing judge' 'Whether the sentence imposed was manifestly excessive']

Ratio Decidendi

Extension of time to appeal granted as explanation for delay was not challenged and grounds were arguable; however, the applicant and Mr Touma were not co-offenders and the parity principle did not apply; even if it did, the sentencing judge's finding that the applicant’s criminality was more serious was open and justified disparity. Additional evidence as to custodial conditions was inadmissible because it related to changes from executive action after sentence, not to misapprehension at original sentencing. The sentence imposed was not manifestly excessive given the objective seriousness of the offending and the applicable legal principles, and no error of principle was revealed.

Court Disposition

Appeal dismissed (sentence upheld); application for leave to appeal out of time granted; additional evidence rejected

Orders

  • ['Extend the time for filing an application for leave to appeal to 1 May 2018.' 'Grant the applicant leave to appeal.' 'Dismiss the appeal.' 'Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), order that paragraphs [70]-[72], [239]-[240] and the last sentence of paragraph [243] of...