Dagher v R [2017] NSWCCA 258

Dagher v R [2017] NSWCCA 258

The sentencing judge's failure to specify the sentence that would have been imposed but for the applicant's undertaking to provide future assistance was non-compliance with s 16AC of the Crimes Act 1914 (Cth), causing the sentencing discretion to miscarry. The Court was required to allow the appeal and re-sentence the applicant according to law, including stating the sentence that would have been imposed absent the promise of future assistance, even though the sentence ultimately imposed was in effect the same as the original sentence.

Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Re Sentence
Outcome
Leave to appeal granted; appeal allowed; applicant re-sentenced to 2 years' imprisonment commencing on 22 May 2017 with release after 1 year on recognisance.
Legal Topics
['federal Offence Sentencing' 'future Assistance Discount' 'section 16 AC Compliance' 'social Security Fraud' 'full Time Custody' "prosecutor's Duty to Assist Court"]
['criminal Law' 'sentencing' 'advocacy'] ['federal Offence Sentencing' 'future Assistance Discount' 'section 16 AC Compliance' 'social Security Fraud' 'full Time Custody' "prosecutor's Duty to Assist Court"]

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Re Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to comply with s 16AC of the Crimes Act 1914 (Cth) when reducing the sentence for the applicant's undertaking to co-operate with law enforcement authorities." 'Whether the Court should re-sentence the applicant rather than remit the matter to the sentencing judge.' 'Whether a sentence involving full-time custody was required in all the circumstances.' 'Whether the appeal should be allowed even though the re-sentence was numerically the same as the sentence imposed below.']

Ratio Decidendi

The sentencing judge's failure to specify the sentence that would have been imposed but for the applicant's undertaking to provide future assistance was non-compliance with s 16AC of the Crimes Act 1914 (Cth), causing the sentencing discretion to miscarry. The Court was required to allow the appeal and re-sentence the applicant according to law, including stating the sentence that would have been imposed absent the promise of future assistance, even though the sentence ultimately imposed was in effect the same as the original sentence.

Court Disposition

Leave to appeal granted; appeal allowed; applicant re-sentenced to 2 years' imprisonment commencing on 22 May 2017 with release after 1 year on recognisance.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' "In lieu of the sentence imposed by Delaney ADCJ on 22 May 2017, impose a sentence of 2 years' imprisonment commencing on 22 May 2017." 'Direct that the applicant be released after serving 1 year, on 21 May 2018 on recognisance to be of good behaviour for 1 year, upon...