ABDUL-KADER, Mostafa v R [2007] NSWCCA 329

Reported Decision: 178 A Crim R 281

New South Wales Court of Criminal Appeal

CITATION: ABDUL-KADER, Mostafa v R [2007] NSWCCA 329

HEARING DATE(S): 18 October 2007

JUDGMENT DATE: 29 November 2007

JUDGMENT OF: Beazley JA at 1; Hulme J at 96; Latham J at 97

DECISION: 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence allowed; 3. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - evidence – the 'credibility rule' – exception to credibility rule – re-establishing credit – prior consistent statement – question of admissibility of prior consistent statement to support or establish credit – trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion – whether trial judge erred in refusing tender of statement - CRIMINAL LAW – sentencing – parity – appellant's criminality of a lower objective seriousness – co-accused three years younger and of limited intellect – whether trial judge erred in imposing sentence - CRIMINAL LAW – sentencing – date of commencement of sentence - pre-sentence custody – custody not exclusively referable to sentence being passed – appellant serving sentence for other offences – whether trial judge failed to give credit for time in custody

Crimes Act 1900 ss 18, 19A, 97(1) Crimes (Sentencing Procedure) Act 1999 ss 24(a), 47(3), Div 1A LEGISLATION CITED: Criminal Appeal Act 1912 s 6(2) Criminal Procedure Act 1986 s 150 Evidence Act 1995 ss 66, 102, 108(3)(b), 192

Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 R v Ali [2000] NSWCCA 177 R v Close (1992) 31 NSWLR 743 R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227 CASES CITED: R v McHugh (1985) 1 NSWLR 588 R v MDB [2005] NSWCCA 354 R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 R v Simpson (1992) 61 A Crim R 58 Regina v Abdulkader & Hohaia [No 1] [2006] NSWSC 198 Roberts v R [2007] NSWCCA 112