Kabir v R [2020] NSWCCA 139

Kabir v R [2020] NSWCCA 139

The sentencing discretion was not shown to have miscarried. The s 16BA procedure was substantively satisfied because the legally represented applicant had signed the schedule and agreed facts and, through counsel, made clear that he admitted the additional offence and wished it taken into account. Mr Lee was properly treated as a victim whose statement could be considered because he was used in the offending and suffered harm. The judge expressly considered family hardship, was entitled to give little or no mitigating weight to good character in the circumstances of sustained tax-related dishonesty, and was entitled to decline to find genuine remorse. Leave was granted but the appeal was...

Jurisdiction
Australia
Judgment Date
08 July 2020
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sentence Appeal' 'federal Offences' 'obtaining Financial Advantage by Deception From a Commonwealth Entity' 'dealing With Proceeds of Crime' 'section 16 BA Schedule Offences' 'victim Impact Statements' 'procedural Fairness' 'family Hardship' 'good Character' 'remorse']
['criminal Law' 'sentencing' 'criminal Procedure'] ['sentence Appeal' 'federal Offences' 'obtaining Financial Advantage by Deception From a Commonwealth Entity' 'dealing With Proceeds of Crime' 'section 16 BA Schedule Offences' 'victim Impact Statements' 'procedural Fairness' 'family Hardship' 'good Character' 'remorse']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing judge failed to comply with the procedure in s 16BA of the Crimes Act 1914 (Cth) by not personally asking the applicant whether he admitted guilt and wished the additional offence to be taken into account.' 'Whether Benigno Lee was a victim of the offending and whether his statement could be taken into account as a victim impact statement.' "Whether the sentencing judge failed to take hardship to the applicant's family into account." "Whether the sentencing judge denied procedural fairness or failed to take the applicant's prior good character into account when treating character material with little or no weight." 'Whether the sentencing judge erred in declining to find genuine remorse.']

Ratio Decidendi

The sentencing discretion was not shown to have miscarried. The s 16BA procedure was substantively satisfied because the legally represented applicant had signed the schedule and agreed facts and, through counsel, made clear that he admitted the additional offence and wished it taken into account. Mr Lee was properly treated as a victim whose statement could be considered because he was used in the offending and suffered harm. The judge expressly considered family hardship, was entitled to give little or no mitigating weight to good character in the circumstances of sustained tax-related dishonesty, and was entitled to decline to find genuine remorse. Leave was granted but the appeal was...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']