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Abbas, Bodiotis, Taleb and Amoun v R

Abbas, Bodiotis, Taleb and Amoun v R

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Hearing dates: 14/02/2013
Decision date: 22 May 2013
Before: Bathurst CJ at [1]
Basten JA at [31]
Hoeben CJ at CL at [67]
Garling J at [110]
Campbell J at [255]
Decision:
In the application of Amoun:
1. Application for leave to appeal granted.
2. Appeal upheld.
3. Sentence imposed on 23 March 2012 quashed.
4. In lieu thereof Amoun is sentenced as follows:
(i) On Count 1, taking into account the three matters on a Form 1, a non-parole period of 4 years and 4 months commencing on 30 April 2012, with a balance of term of 2 years and 7 months. The total sentence will expire on 29 March 2019.
(ii) On Count 2, a non-parole period of 3 years and 5 months commencing on 30 January 2011, with a balance of term of 1 year and 9 months. The total sentence will expire on 29 March 2016.
The first day upon which Amoun will be eligible to be released is 29 August 2016.
In the application of Bodiotis:
1. Leave to appeal granted.
2. Appeal be dismissed.
In the application of Taleb:
1. Leave to appeal granted.
2. Appeal be dismissed.
In the application of Abbas:
1. Leave to appeal granted.
2. Appeal be dismissed.

Catchwords:
CRIMINAL LAW - applications to appeal against sentence - four applicants - all applicants convicted of offences relating to six transactions of supply of a commercial quantity of a prohibited drug(s) and knowingly dealing with the proceeds of the supply of prohibited drug(s) - applicants plead guilty
SENTENCING - whether Form 1 offences were properly taken into account at sentencing - purpose of Form 1 procedure - whether in taking into account Form 1 offences the applicants were effectively sentenced for offences that were not charged on the indictment - whether sentences lacked parity - whether sentence was manifestly excessive - whether sentence reflected appropriate discount for provision of assistance to authorities.
Legislation Cited: Crimes Act 1914 (Cth)
Crimes Act 1900
Criminal Code (WA)
Criminal Procedure Act 1986
Crimes (Sentencing Procedure Act) 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Anderson v Director of Public Prosecutions (1978) AC 964;
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146;
DGM v R [2006] NSWCCA 296;
Dionys v The Queen [2011] NSWCCA 272; (2011) 217 A Crim R 280;
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1; 266 ALR 598;
Giles v Director of Public Prosecutions [2009] NSWCCA 308; 198 A Crim R 395;
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348;
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606;
Markarin v The Queen [2005] HCA 25; (2005) 228 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWCCA 115
Decision Date: 22 May 2013

CaseChat Overview and Summary

The four applicants, having been convicted of offences relating to the supply of a commercial quantity of a prohibited drug and dealing with the proceeds of such supply, sought to appeal against their sentences. Their convictions stemmed from six transactions involving prohibited drugs, and all applicants had entered guilty pleas. The primary legal issues before the court were whether the Form 1 offences were properly considered during sentencing, whether the applicants were effectively sentenced for offences not charged on the indictment, whether the sentences lacked parity, whether they were manifestly excessive, and whether they appropriately reflected any discount for assistance provided to the authorities. The court examined these issues to determine the validity of the applicants' appeal against their sentences.

The court considered the purpose of the Form 1 procedure, which allows for the consideration of additional offences that are not charged on the indictment but are relevant to the sentencing of the charged offences. The court found that the Form 1 offences were appropriately taken into account during sentencing as they were relevant to the overall context of the criminal activity. The court held that the applicants were not effectively sentenced for offences not charged on the indictment, as the Form 1 procedure is a legitimate means of considering additional relevant offences. Furthermore, the court found that the sentences did not lack parity and were not manifestly excessive, taking into account the severity and nature of the offences committed. Finally, the court concluded that the sentences reflected an appropriate discount for the assistance provided by the applicants to the authorities.

The court dismissed the applications for appeal against sentence, affirming that the sentences were appropriately calculated and proportionate to the offences committed. The court's decision was based on a detailed examination of the legal principles surrounding the use of Form 1 offences in sentencing, the parity of sentences, and the appropriate consideration of assistance provided to authorities. The applicants' sentences were upheld as just and appropriate under the circumstances.

Orders