Hamdan v R [2023] NSWCCA 80

Hamdan v R [2023] NSWCCA 80

The Court refused an extension of time because the proposed sentence appeal lacked merit. There was no miscarriage of justice: sentencing counsel was aware of s 23, had obtained and tendered evidence about recovery of the firearm, and made submissions relying on that evidence as showing contrition, remorse and removal of the firearm from the public domain. The sentencing judge took the recovery of the firearm into account in finding remorse and ameliorating sentence. The alleged failure to refer expressly to s 23 did not establish incompetence, carelessness or oversight, and there was no basis to conclude that a lesser sentence would have been imposed if s 23 had been mentioned expressly.

Jurisdiction
Australia
Judgment Date
12 April 2023
Procedural Posture
Application for Extension of Time and Leave to Appeal Against Sentence / Court of Criminal Appeal Application Out of Time Following Sentence in the District Court of NSW
Outcome
Extension of time refused.
Legal Topics
['application for Leave to Appeal Against Sentence Out of Time' 'assistance to Law Enforcement Authorities Under S 23 of the Crimes (sentencing Procedure) Act 1999 (nsw)' 'alleged Incompetence, Carelessness or Oversight of Counsel' 'miscarriage of Justice' 'firearms Offences' 'remorse and Rehabilitation' 'extension of Time']
['criminal Law' 'sentencing' 'criminal Procedure'] ['application for Leave to Appeal Against Sentence Out of Time' 'assistance to Law Enforcement Authorities Under S 23 of the Crimes (sentencing Procedure) Act 1999 (nsw)' 'alleged Incompetence, Carelessness or Oversight of Counsel' 'miscarriage of Justice' 'firearms Offences' 'remorse and Rehabilitation' 'extension of Time']

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Procedural Posture

Application for Extension of Time and Leave to Appeal Against Sentence / Court of Criminal Appeal Application Out of Time Following Sentence in the District Court of NSW

Legal Issues

  1. 1 ["Whether a miscarriage of justice was occasioned by sentencing counsel's failure to make a submission specifically referring to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)." "Whether the applicant's disclosure of the firearm's location required or warranted a discrete discount for assistance to law enforcement authorities." 'Whether an extension of time should be granted to bring the application for leave to appeal against sentence.']

Ratio Decidendi

The Court refused an extension of time because the proposed sentence appeal lacked merit. There was no miscarriage of justice: sentencing counsel was aware of s 23, had obtained and tendered evidence about recovery of the firearm, and made submissions relying on that evidence as showing contrition, remorse and removal of the firearm from the public domain. The sentencing judge took the recovery of the firearm into account in finding remorse and ameliorating sentence. The alleged failure to refer expressly to s 23 did not establish incompetence, carelessness or oversight, and there was no basis to conclude that a lesser sentence would have been imposed if s 23 had been mentioned expressly.

Court Disposition

Extension of time refused.

Orders

  • ['An extension of time in which to bring an application for leave to appeal is refused.']