Assaf v Regina [2007] NSWCCA 122

New South Wales Court of Criminal Appeal

CITATION: Assaf v Regina [2007] NSWCCA 122

HEARING DATE(S): 12 March 2007

JUDGMENT DATE: 16 May 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hislop J at 4

DECISION: (1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS: Criminal Law - Sentence - Appeal based on events subsequent to sentence. - Review of sentence a matter for executive government not court.

LEGISLATION CITED: Crimes Act 1900 - ss 59(2), 178BA(1) Crimes (Sentencing Procedure) Act 1999 - ss 9, 66(1)(b), 21A

R v Ashton (2002) 137 A Crim R 73 CASES CITED: R v Ehrenburg(NSWCCA, unreported, 14 December 1990) R v Mioduszewski (NSWCCA, unreported 28 May 2004) R v Munday (1981) 2 NSWLR 177

PARTIES: Applicant - Bakos Assaf Respondent - Regina

FILE NUMBER(S): CCA 2005/1104

COUNSEL: Applicant - Mr J. Punch Respondent - Mr P. Ingram

SOLICITORS: Applicant - Raphael & Associates Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0043

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 21 April 2005

- 1 - IN THE COURT OF CRIMINAL APPEAL 2005/1104

McCLELLAN CJ at CL HULME J HISLOP J

16 May 2007 Bakos ASSAF v REGINA Judgment

1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HULME J: I agree with the orders proposed by Hislop J and with his Honour's reasons. I would add the following. 3 The material before the Court persuades me that a combination of his sentence and the psychiatric condition which has supervened since, means that in consequence of his offence the Applicant has suffered far, far more than any punishment his offence deserved. The case is one which merits serious consideration by the executive government pursuant to the powers referred to in R v Munday (1981) 2 NSWLR 177 at 178 and, following the dismissal of this appeal, urgent such attention. 4 HISLOP J: The applicant was charged on indictment on the following counts: Count (1) attempt to obtain money by deception contrary to the Crimes Act 1900 s178BA(1). The maximum penalty for such an offence is imprisonment for 5 years when dealt with on indictment or 2 years if dealt with summarily.