Shalida v R [2024] NSWCCA 55

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Shalida v R [2024] NSWCCA 55 Hearing dates: 8 March 2024 Date of orders: 29 April 2024 Decision date: 29 April 2024 Before: Gleeson JA at [1] Rothman J at [105] Cavanagh J at [106] Decision: (1) Grant leave to appeal. (2) Appeal dismissed. (3) Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), the applicant's sentence is to recommence on 29 April 2024. (4) The Court notes for the purposes of s 18(2) of the Criminal Appeal Act that the period of 353 days, being from 12 May 2023 to 28 April 2024 (inclusive of those dates), does not count as part of the sentence of imprisonment imposed in the District Court on 4 November 2022. (5) The Court further notes for the purpose of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that: (a) the sentence recommences on 29 April 2024; (b) pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the applicant be released on 16 January 2025 after having served 15 months in total, on entering into a recognizance in the sum of $2,000 without surety to be of good behaviour for a period of 3 years from 16 January 2025; and (c) the sentence will now expire on 16 April 2026, and the good behaviour period will expire on 16 January 2028. Catchwords: CRIME — Drug offences — Commonwealth offence — Attempted possession of unlawfully imported drug — Where offender attempted possession of cocaine concealed in mail consignment SENTENCING — Appeal against sentence — Application for leave to appeal — Sentence by State court for offence against Commonwealth law — Whether sentencing judge misapplied principles relating to utilitarian discount for guilty plea — Whether sentencing judge failed to consider relevant factors — Whether sentencing judge erred in findings concerning prospects of rehabilitation and likelihood of reoffending APPEALS — Power to receive further evidence — Whether court should admit new or fresh evidence — Whether new evidence relating to alleged incomplete or inaccurate pre-sentence report admissible — Where alleged incompetent legal representation — Whether new evidence of reasons for guilty plea admissible — Where no challenge to conviction SENTENCING — Appeal against sentence — Manifest excess — Relevance of comparative sentences — Whether sentence imposed exceeds the bounds of proper sentencing discretion SENTENCING — Appeal against sentence — Powers of court — Power to adjust sentence to account for time spent on bail pending appeal — Where appeal dismissed and original sentence upheld Legislation Cited: Crimes Act 1914 (Cth), Pt 1B - ss 16A, 16BA, 17A, 20(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 48 Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 18(2), 28A Criminal Code Act 1995 (Cth), ss 11, 307.2, 307.6 Criminal Procedure Act 1986 (NSW), s 166 Drug Misuse and Trafficking Act 1985 (NSW), s 10 Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1) Cases Cited: Ahmad v R [2006] NSWCCA 177 Bae v R [2020] NSWCCA 35 Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Barnes v R [2022] NSWCCA 140 Boutros v R [2015] NSWCCA 171 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Green v R [2022] NSWCCA 230 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 JC v R [2023] NSWCCA 231 Khoury v R [2011] NSWCCA 118 Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242 Monteiro v R; R v Monteiro [2011] NSWCCA 113 Moodie v R [2020] NSWCCA 160 Obeid v R [2017] NSWCCA 221; (2017) 350 ALR 103 Patel v R [2022] NSWCCA 93 Rao v R [2019] NSWCCA 290 R v Boutros [2013] NSWDC 291 R v Chew [2022] NSWDC 325 R v Dib [2003] NSWCCA 117 R v Keelan [2022] NSWDC 387 R v Nguyen; R v Pham [2010] NSWCCA 238 R v Taleb [2023] NSWDC 139 Stubbings v R [2023] NSWCCA 69 Webber v R [2014] NSWCCA 111 Wong v R (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Marionos Shalida (Applicant) The King (Respondent) Representation: Counsel: S Flood / M Hawila (Respondent)