Samandi v R [2020] NSWCCA 217

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Samandi v R [2020] NSWCCA 217 Hearing dates: 14 August 2020 Decision date: 27 August 2020 Before: Bell P at [1] Johnson J at [2] Rothman J at [166] Decision: 1. Leave to appeal against conviction refused.

2. Grant leave to appeal against sentence.

3. Appeal against sentence dismissed.

4. For the purpose of s.28A(2) Criminal Appeal Act 1912, an order is made that the Applicant's aggregate sentence imposed on 13 December 2018 should recommence 27 August 2020.

5. For the purpose of s.18(2) Criminal Appeal Act 1912, the Court notes that the period between 10 June 2020 and 26 August 2020 does not count as part of the aggregate sentence of imprisonment imposed on 13 December 2018.

6. As a result of the alterations to the aggregate sentence referred to in [165](d) and (e), the non-parole period will now expire on 7 February 2021 and the aggregate sentence will expire on 6 May 2023.

7. The earliest date on which the Applicant will be eligible for release on parole is 8 February 2021. Catchwords: APPEAL – application for leave to appeal against conviction and sentence – domestic violence offences and making false accusation offence committed in 2016 – applicant pleaded guilty to certain offences in District Court after commencement of jury trial – Crown agreed not to proceed further on counts alleging offences of having sexual intercourse without consent – applicant gave signed instructions to his legal representatives to plead guilty – applicant wrote letter of apology tendered on sentence – principles to be applied on appeal against conviction involving application to withdraw pleas of guilty – whether there has been a miscarriage of justice – evidence given by applicant and applicant's former legal representatives at hearing in Court of Criminal Appeal – applicant's pleas of guilty entered freely and voluntarily and with full knowledge of elements of offences – no miscarriage of justice – leave to appeal against conviction refused – application for leave to appeal against sentence – whether applicant's legal representation in sentencing court was incompetent – where reasonable steps were taken by applicant's legal representatives to advise him of available courses of action – 2008 medical report not available at time of sentence – 2008 report placed before Court of Criminal Appeal – no nexus demonstrated between 2008 report and commission of the domestic violence and public justice offences in 2016 – whether aggregate sentence imposed was manifestly excessive – objective gravity of domestic violence and public justice offences – specific and general deterrence and recognition of harm important factors on sentence for domestic violence offences – aggregate sentence was not manifestly excessive – leave to appeal against sentence granted – appeal against sentence dismissed Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Cases Cited: Attorney General for NSW v John Fairfax and Sons Limited and Bacon (1985) 6 NSWLR 695 Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 Cherry v R [2017] NSWCCA 150 Hunter Quarries Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326 Kanakaradnam v R [2018] NSWCCA 282 Kennedy v R [2017] NSWCCA 193 Khamis v R [2014] NSWCCA 152 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61 R v Kaewklom (No. 2) [2012] NSWSC 1117 R v Samandi [2018] NSWDC 397 Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102 Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 Tsiakas v R [2015] NSWCCA 187 Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129 Texts Cited: --- Category: Principal judgment Parties: Ali Samandi (Applicant) Regina (Respondent) Representation: Counsel: Mr A Samandi (Applicant in person) Mr D Patch (Respondent)