New South Wales Court of Criminal Appeal CITATION: Assafiri, Wassim Saad v R (No 2) [2007] NSWCCA 356 HEARING DATE(S): 08/06/2007 JUDGMENT DATE: 18 December 2007 JUDGMENT OF: Basten JA at 1; Grove J at 2; Howie J at 3 DECISION: The Court vacates the sentences imposed on 19 June 2007 and imposes the following sentences upon the applicant: Count 1: Imprisonment for 14 months from 19 September 2006 and to expire on 18 November 2007. Count 2: (Taking into account the matters under s 16BA) imprisonment for 2 years from 19 February 2007 and to expire on 18 February 2009. Count 3: Imprisonment for 19 months from 19 February 2007 and to expire on 18 September 2008. Count 4: Imprisonment for 6 months from 19 February 2007 and to expire on 18 August 2007. The sentences for the related matters are confirmed but are to date from 19 September 2006. The applicant is to serve a period of 1 year 5 months from 19 September 2006 and to expire on 18 February 2008 and is to be released to recognizance on giving surety in the sum of $100 without security on 19 February 2008. CATCHWORDS: APPEAL - re-opening proceedings to correct errors - re-sentencing. LEGISLATION CITED: Crimes Act 1914 (Cth) - s 20(1) Criminal Procedure Act 1987 (NSW) - s 166 PARTIES: Wassim Saad Assafiri v Regina FILE NUMBER(S): CCA 2007/1020 COUNSEL: W Abraham SC - Crown M Thangaraj/D Sulan - Applicant SOLICITORS: S Kavanagh - Crown Lawyerscorp Pty Ltd - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0312 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 17/09/2006 IN THE COURT OF CRIMINAL APPEAL CCA 2007/1020 BASTEN JA GROVE J HOWIE J TUESDAY 18 DECEMBER 2007 Wassim Saad ASSAFIRI v Regina (No. 2) Judgment 1 THE COURT: The first judgment in this matter was delivered on 19 June 2007. The Court granted leave to the applicant to appeal against sentences imposed in the District Court, the appeal was allowed and the applicant resentenced: see [2007] NSWCCA 159. It has come to the Court's attention that in resentencing the applicant it failed to comply with s 20(1) of the Crimes Act 1914 (Cth) in that it omitted to specify in the recognizance release order the amount of security to be given by the applicant. 2 Further the applicant had been sentenced in the District Court for a number of related matters in accordance with s 166 of the Criminal Procedure Act 1987 (NSW). It was the intention of the District Court Judge and of this Court that those sentences would be served concurrently with each other and the sentences imposed for the offences for which the applicant had been committed for sentence. It transpires that, despite the intention of the Court that the applicant be released on 19 February 2008, one of those sentences expires after that date. 3 This problem has occurred because the Court confirmed the sentences for the related matters but dated them from 19 September 2007. The commencement date was erroneous and should have been 19 September 2006, the date upon which the sentence for the first of the committal charges commenced. 4 In order to cure these defects the Court vacates the earlier sentences and imposes the following sentences upon the applicant: Count 1: Imprisonment for 14 months from 19 September 2006 and to expire on 18 November 2007. Count 2: (taking into account the matters under s 16BA) Imprisonment for 2 years from 19 February 2007 and to expire on 18 February 2009. Count 3: Imprisonment for 19 months from 19 February 2007 and to expire on 18 September 2008. Count 4: Imprisonment for 6 months from 19 February 2007 and to expire on 18 August 2007. The sentences for the related matters are confirmed but are to date from 19 September 2006. The applicant is to serve a period of 1 year 5 months from 19 September 2006 and to expire on 18 February 2008 and is to be released to recognizance on giving surety in the sum of $100 without security on 19 February 2008. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.