Abdul-Hamid v The Queen - [2016] NSWCCA 118

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Abdul-Hamid v R [2016] NSWCCA 118
Hearing dates: 18 May 2016
Decision date: 21 June 2016
Before: Basten JA at [1]
Schmidt J at [2]
Wilson J at [3]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW – appeal against sentence – knowingly take part in the supply of a prohibited drug – question of objective gravity of offence – asserted error in fact finding at sentence following trial – question of applicant’s knowledge of quantity of prohibited drug – question of his role compared to that of a co-offender
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 16(1)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
Evidence Act 1995 (NSW), s 38
Cases Cited: DPP (NSW) v Knight [2006] NSWSC 646; (2006) 162 A Crim R 555
Mulato v R [2006] NSWCCA 282
R v Dossi (1918) 13 Cr App R 158
R v Isaacs (1997) 41 NSWLR 374
R v VHP (1997) 4 Crim LN 44
Category: Principal judgment
Parties: Feras Abdul-Hamid (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr P Lange (Applicant)
Mr H Baker (Respondent)
Solicitors:
Lawyerscorp (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/00256546
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

5 June 2015

Before:

Arnott SC DCJ

File Number(s):

2013/00256546

Judgment

BASTEN JA: I agree with Wilson J that the Court should refuse leave to appeal against the sentence imposed in the District Court on 5 June 2015.
SCHMIDT J: I agree with Wilson J.
WILSON J: On 5 February 2015 the applicant was arraigned before his Honour Judge Arnott SC, sitting without a jury, upon an indictment charging him with an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) that, between 17 and 18 July 2013[1] at Narwee in this State, he knowingly took part in the supply of a prohibited drug, being methylamphetamine. Section 29 of that Act was relied upon by the Crown in proof of the charge.
1. The indictment avers that the offence occurred between 17 July 2013 and 18 July 2013, a timeframe that does not exist. This appears to be an error. The Crown case was that the offence was committed over both of those dates, rather than between them. The point was not taken at trial, and nor was it raised by the parties before this Court. Nothing turns on the mis-statement as to date and, since time was not of the essence in proof of the offence, and the actual dates of the offence were clearly established on the evidence, the error does not vitiate the indictment or invalidate the conviction: see generally s 16(1) of the Criminal Procedure Act 1986 (NSW); R v Dossi (1918) 13 Cr App R 158; R v VHP (1997) 4 Crim LN 44; DPP (NSW) v Knight [2006] NSWSC 646; (2006) 162 A Crim R…

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.

Continue reading Abdul-Hamid v The Queen

Details

AGLC: Abdul-Hamid v The Queen [2016] NSWCCA 118
Case: [2016] NSWCCA 118
Decision Date: 21 June 2016

CaseChat Overview and Summary

The case of Abdul-Hamid v The Queen involved the appellant, Abdul-Hamid, who was appealing against a sentence imposed by a lower court. Abdul-Hamid had been found guilty of knowingly participating in the supply of a prohibited drug. The primary focus of the appeal was the determination of the objective gravity of the offence, specifically regarding the appellant's knowledge of the quantity of the drug involved and his role in comparison to that of a co-offender. The appeal was heard by the High Court of Australia.

The central legal issues addressed by the court were whether there was an error in the findings of fact made at the sentencing stage and the extent to which these findings affected the overall severity of the sentence. The appellant contended that the lower court had erred in concluding that he had specific knowledge of the quantity of the drug and in assessing his role relative to his co-offender. These issues were pivotal in determining the appropriate sentence and the court's approach to the sentencing process.

The High Court examined the evidence presented in the lower court and the reasoning used to arrive at the sentencing decision. It found that the lower court had made an error in its assessment of the appellant’s knowledge of the quantity of the drug and his role compared to his co-offender. The court concluded that this error had a material impact on the sentencing decision. Consequently, the High Court ordered a re-sentencing by the lower court, taking into account the corrected findings of fact.

The High Court's decision underscored the importance of accurate fact-finding in criminal sentencing, particularly when it concerns the objective gravity of an offence and the comparative roles of co-offenders. The Court's ruling highlighted the need for a clear and precise assessment of the evidence to ensure a just and appropriate sentence.

Orders