Ahio v DPP (NSW) [2008] NSWSC 565

Ahio v DPP (NSW) [2008] NSWSC 565

The plaintiff was entitled to have the correct position concerning automatic revocation of his security licence taken into account on sentence. The sentencing magistrate was misled by the plaintiff's representative's statement that conviction alone caused revocation, acted on a mistake as to law, and failed to take into account a material consideration. The merits justified extending time and granting leave, but the proper course was to set aside the sentence for maliciously inflicting grievous bodily harm and remit the matter to the Local Court for redetermination rather than necessarily restructure the sentence to avoid automatic revocation.

Jurisdiction
Australia
Judgment Date
11 June 2008
Procedural Posture
Appeal or Application for Leave to Appeal Against Local Court Sentence Under Pt 5 Div 1 of the Crimes (appeal and Review) Act, 2001 / Extension of Time and Leave to Appeal Against Sentence; Sentence Appeal Determined by the Supreme Court of New South Wales, Common Law Division
Outcome
Time extended, leave to appeal granted, sentence for maliciously inflicting grievous bodily harm set aside, and matter remitted to the Downing Centre Local Court for redetermination of sentence; each party to bear his or her costs.
Legal Topics
['extra Curial Punishment' 'loss of Security Licence' 'maliciously Inflicting Grievous Bodily Harm' 'extension of Time' 'leave to Appeal' 'mixed Law and Fact']
['criminal Law' 'sentencing' 'appeals'] ['extra Curial Punishment' 'loss of Security Licence' 'maliciously Inflicting Grievous Bodily Harm' 'extension of Time' 'leave to Appeal' 'mixed Law and Fact']

Case Brief

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Procedural Posture

Appeal or Application for Leave to Appeal Against Local Court Sentence Under Pt 5 Div 1 of the Crimes (appeal and Review) Act, 2001 / Extension of Time and Leave to Appeal Against Sentence; Sentence Appeal Determined by the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ['Whether time should be extended to appeal or seek leave to appeal against sentence.' 'Whether leave should be granted under s 53(1) of the Crimes (Appeal and Review) Act, 2001 for grounds involving mixed law and fact.' "Whether the sentencing magistrate erred by failing to take into account the correct consequences of the sentence for the plaintiff's security licence under the Security Industry Act, 1997." 'Whether the sentence for maliciously inflicting grievous bodily harm should be set aside and remitted for redetermination.']

Ratio Decidendi

The plaintiff was entitled to have the correct position concerning automatic revocation of his security licence taken into account on sentence. The sentencing magistrate was misled by the plaintiff's representative's statement that conviction alone caused revocation, acted on a mistake as to law, and failed to take into account a material consideration. The merits justified extending time and granting leave, but the proper course was to set aside the sentence for maliciously inflicting grievous bodily harm and remit the matter to the Local Court for redetermination rather than necessarily restructure the sentence to avoid automatic revocation.

Court Disposition

Time extended, leave to appeal granted, sentence for maliciously inflicting grievous bodily harm set aside, and matter remitted to the Downing Centre Local Court for redetermination of sentence; each party to bear his or her costs.

Orders

  • ['The time in which to appeal or seek leave to appeal is extended to 4.00 pm on 4 March 2008.' 'Leave is granted pursuant to s 53(1) of the Crimes (Appeal and Review) Act, 2001 to appeal to this court against sentence on grounds that involve a question of mixed law and fact.' 'Set aside the sentence in respect of...