Refaieh v R [2018] NSWCCA 72

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Refaieh v R [2018] NSWCCA 72 Hearing dates: 26 February 2018 Date of orders: 18 April 2018 Decision date: 18 April 2018 Before: Hoeben CJ at CL at [1] Johnson J at [2] N Adams J at [3] Decision: (1) Leave to appeal is granted.

(2) The appeal is allowed to the extent of one day.

(3) The sentence imposed by Judge Toner SC on 15 July 2016 is adjusted so that the applicant is sentenced to a term of imprisonment with a non-parole period of four years commencing 19 August 2015 and expiring 18 August 2019 with a balance of term of two years, expiring 18 August 2021. Catchwords: SENTENCING – Appeal against sentence – severity – commencement date of sentence – offender was on bail for offence subject of sentencing proceedings but remanded in custody for a separate murder charge that was later no billed – whether the trial judge erred in failing to find that the time on remand was "in relation to" to the offence the subject of the sentencing proceedings, pursuant to s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether the trial judge erred in properly exercising his discretion under s 47(2) of the Act by not backdating the sentence further to account for this additional time spent on remand Legislation Cited: Bail Act 2013 (NSW), ss 7, 14, 50, 51 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 44, 47 Criminal Appeal Act 1912 (NSW), s 5 Drug Misuse and Trafficking Act 1985 (NSW), s 25 Cases Cited: Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 Hamilton v R [2016] NSWCCA 59 Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 House v R (1936) 55 CLR 499; [1936] HCA 40 Hutchen v R [2015] NSWCCA 101 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Parkhizkar v R (2014) 245 A Crim R 515; [2014] NSWCCA 240 R v Callaghan (2006) 160 A Crim R 145; [2006] NSWCCA 58 R v Cartwright (1989) 17 NSWLR 243 R v Connell [2013] NSWCCA 155 R v Dadash [2012] NSWSC 1511 R v Karageorge [1999] NSWCCA 213 R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unrep) R v Pham [2005] NSWCCA 94 R v Thompson (2005) 156 A Crim R 467; [2005] NSWCCA 11 R v Windle [2012] NSWCCA 222 Sultana v R [2007] NSWCCA 107 Category: Principal judgment Parties: Ahmed Refieah (Applicant) Regina (Respondent) Representation: Counsel: Ms G E Lewer (Applicant) Ms B Baker (Respondent)