Elwdah v R [2024] NSWCCA 150

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elwdah v R [2024] NSWCCA 150 Hearing dates: 15 April 2024 Date of orders: 09 August 2024 Decision date: 09 August 2024 Before: Wright J [1] Chen J [2] McNaughton J [3] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed by Colefax SC DCJ on 6 October 2023, as amended on 16 February 2024, and in lieu thereof impose the following sentence: (a) The applicant is sentenced to imprisonment for 2 years but the Court orders the release of the applicant under s 20(1)(b) of the Crimes Act 1914 (Cth) forthwith upon the applicant giving security without surety, by recognizance in the amount of $500 on the condition that he will be of good behaviour for 2 years. In addition, he will over a period of 2 years comply with the following conditions: (i) The applicant will be subject to the supervision of a probation officer appointed in accordance with the order; (ii) The applicant will obey all reasonable directions of the probation officer; (iii) The applicant will not travel interstate or overseas without the written permission of the probation officer; (iv) The applicant will undertake such treatment or rehabilitation programs that the probation officer reasonably directs. Catchwords: CRIME – appeals – appeal against sentence – child sex offence – where no explicit reference to s 16A(2AAA) Crimes Act 1914 (Cth) in remarks on sentence – where sentence proceedings previously reopened to correct orders – whether sentencing judge failed to engage with a mandatory sentencing consideration – whether sentencing discretion miscarried – appeal allowed Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 16E, 19AC, 19AHA, 20 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 67 Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Code 1995 (Cth), s 474.27AA Cases Cited: Chan v R [2023] NSWCCA 206 Curle v R [2024] NSWCCA 117 Darke v R [2022] NSWCCA 52 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v A [2004] NSWCCA 292 R v Bredal [2024] NSWCCA 75 R v Kain [2004] NSWCCA 143 R v Medalian (2019) 133 SASR 50 R v Pham (2015) 256 CLR 550; [2015] HCA 39 RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 178 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 SR v R [2024] NSWCCA 43 Texts Cited: Office of the Commonwealth Director of Public Prosecutions, Sentencing of federal offenders in Australia: a guide for practitioners (7th ed, 2024) ­ Category: Principal judgment Parties: Mahdy Hasn Elwdah (Applicant) Rex (Respondent) Representation: Counsel: K Averre MBE (Applicant) A Chhabra / H Donaldson (Respondent)