EL-AFCHAL v R [2015] NSWCCA 112

EL-AFCHAL v R [2015] NSWCCA 112

The sentencing judge did not err in failing to find 'substantial' progress towards rehabilitation given the evidence and subjective features; even accounting for a factual error about the rehabilitation period, a lesser sentence was not warranted. However, there was error in failing to take into account the full period of pre-sentence custody, which required amendment of the commencement and expiry dates of the sentence.

Jurisdiction
Australia
Judgment Date
25 May 2015
Procedural Posture
Criminal Appeal / Application for Leave to Appeal and Appeal Against Sentence
Outcome
Leave to amend notice of appeal granted; leave to appeal granted; appeal allowed in part; sentence amended to account for full pre-sentence custody; appeal otherwise dismissed.
Legal Topics
['appeal Against Sentence' 'rehabilitation' 'delay in Sentencing' 'pre Sentence Custody' 'aggregate Sentence' 'car Rebirthing Offences' 'receiving Stolen Property' 'possession of Prohibited Weapon']
['criminal Law'] ['appeal Against Sentence' 'rehabilitation' 'delay in Sentencing' 'pre Sentence Custody' 'aggregate Sentence' 'car Rebirthing Offences' 'receiving Stolen Property' 'possession of Prohibited Weapon']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Did the sentencing judge err in the consideration of the applicant's rehabilitation and the relevance of delay?" 'Did the sentencing judge fail to take into account the correct period and amount of pre-sentence custody?']

Ratio Decidendi

The sentencing judge did not err in failing to find 'substantial' progress towards rehabilitation given the evidence and subjective features; even accounting for a factual error about the rehabilitation period, a lesser sentence was not warranted. However, there was error in failing to take into account the full period of pre-sentence custody, which required amendment of the commencement and expiry dates of the sentence.

Court Disposition

Leave to amend notice of appeal granted; leave to appeal granted; appeal allowed in part; sentence amended to account for full pre-sentence custody; appeal otherwise dismissed.

Orders

  • ['The applicant be granted leave to amend the Notice of Appeal in accordance with the amended Notice of Appeal dated 18 May 2015 to include Ground 2.' 'The application for leave to appeal be granted.' 'The aggregate sentence imposed by the District Court on 21 November 2013 be amended so that the non-parole period...