Elchiekh v R [2016] NSWCCA 225

Elchiekh v R [2016] NSWCCA 225

The judge materially erred by reciting the wrong maximum penalty for count 4; however, upon fresh exercise of sentencing discretion, considering all objective and subjective circumstances, the aggregate sentence imposed originally is affirmed as appropriate; leave to appeal out of time is granted, appeal is dismissed, with minor adjustment to backdate sentence by 10 days as agreed by parties.

Jurisdiction
Australia
Judgment Date
19 October 2016
Procedural Posture
Criminal Appeal / Court of Criminal Appeal, Nsw; Leave to Appeal Out of Time; Sentence Appeal
Outcome
Leave to appeal out of time granted; appeal dismissed; aggregate sentence affirmed with adjustment.
Legal Topics
['sentence Appeal' 'drug Supply' 'maximum Penalty' 'seriousness of Offence' 'delay in Prosecution' 'aggregate Sentence']
['criminal Law'] ['sentence Appeal' 'drug Supply' 'maximum Penalty' 'seriousness of Offence' 'delay in Prosecution' 'aggregate Sentence']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal, Nsw; Leave to Appeal Out of Time; Sentence Appeal

Legal Issues

  1. 1 ['Whether the judge took into account the wrong maximum penalty for count 4 when determining sentence' 'Whether the judge failed to properly consider the seriousness of each offence' 'Whether the judge erred in attributing only half the delay between offence and arrest as relevant to sentencing' 'Whether the sentence imposed was manifestly excessive']

Ratio Decidendi

The judge materially erred by reciting the wrong maximum penalty for count 4; however, upon fresh exercise of sentencing discretion, considering all objective and subjective circumstances, the aggregate sentence imposed originally is affirmed as appropriate; leave to appeal out of time is granted, appeal is dismissed, with minor adjustment to backdate sentence by 10 days as agreed by parties.

Court Disposition

Leave to appeal out of time granted; appeal dismissed; aggregate sentence affirmed with adjustment.

Orders

  • ['Leave to appeal out of time granted.' 'Appeal dismissed.' 'Sentence imposed by Mahony SC DCJ on 8 November 2013 adjusted: non-parole period of 7 years 6 months to commence on 29 December 2012 and to expire on 28 June 2020; balance of term of 2 years 6 months to commence on 29 June 2020 and to expire on 28 December...