Abousleiman v R - [2021] NSWCCA 110

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Abousleiman v R [2021] NSWCCA 110
Hearing dates: 21 April 2021
Date of orders: 4 June 2021
Decision date: 04 June 2021
Before: Davies J at [1];
Hamill J at [3];
Wilson J at [44]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against sentence - single ground - manifest excess - drug supply - ongoing supply of cocaine - supplying a commercial quantity MDMA - more than a street dealer - strong subjective case - rehabilitation - death of cousins leading to downward spiral - substantial adjustment to standard non-parole period - sentencing discretion - whether sentence plainly wrong or unjust - appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 193(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

Cases Cited:
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Edwards v R [2021] NSWCCA 57
Glare v R [2015] NSWCCA 194
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lowndes v R (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Category: Principal judgment
Parties: Robert Abousleiman (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Trevallion (Applicant)
S Traynor (Respondent)
Solicitors:
Archbold Gittani Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/363107
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 May 2019

Before:

Delaney ADCJ

File Number(s):

2017/363107

Judgment

DAVIES J: Subject to what follows, I agree with Hamill J and the orders he proposes.
I respectfully do not agree with his Honour's observation at [41] that the aggregate sentence imposed was at the upper end of the range of sentences that could legitimately be imposed for the offences. Whilst the applicant had a compelling subjective case, the applicant had involved himself in serious drug dealing at a higher level than simply street-dealing, not on one occasion, but over a period of time which, according to the Agreed Facts, likely extended beyond the time of the identified supplies that constituted the offences. The supplies which made up Sequence 2 amounted to supplying a commercial quantity of MDMA, albeit not greatly exceeding the threshold, for which the maximum penalty is 20 years' imprisonment with a standard non-parole period of 10 years. Further, as Hamill J noted, the sentencing judge accorded a generous reduction of the statutory ratio so that the non-parole period amounted to approximately 54% of the total sentence.
HAMILL J: Robert Abousleiman applies for leave to appeal against the sentence imposed on him by Acting Judge Delaney in the Parramatta District Court on 22 May 2019. His Honour imposed an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years for a number of charges arising from the applicant’s drug dealing. The sentence was…

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 Abousleiman v R

Details

AGLC: Abousleiman v R [2021] NSWCCA 110
Case: [2021] NSWCCA 110
Decision Date: 04 June 2021

CaseChat Overview and Summary

The case of Abousleiman v R involved an appeal against the sentence imposed on the appellant for drug supply offences. The appellant was convicted of ongoing supply of cocaine and supplying a commercial quantity of MDMA. The appeal was heard by the High Court of Australia. The central issue before the court was whether the sentence imposed by the lower court was manifestly excessive, and if so, whether the appeal should be allowed on that basis.

The court examined the arguments presented by the appellant's counsel, focusing on the principle that a sentence should not be plainly wrong or unjust. The appellant's counsel contended that the sentence was manifestly excessive due to various mitigating factors, including the appellant's rehabilitation efforts and personal circumstances, such as the death of his cousins which led to his downward spiral. The prosecution, however, argued that the sentence was appropriate given the gravity of the offences. The court considered these arguments in light of the principles governing sentencing discretion and the nature of the appellant's criminal conduct.

In its reasoning, the court determined that while the appellant's personal circumstances and efforts at rehabilitation were significant, they did not sufficiently justify a conclusion that the sentence was plainly wrong or unjust. The court noted that the appellant was not merely a street dealer but was involved in the supply of drugs on a larger scale. The court concluded that the lower court had exercised its sentencing discretion appropriately, taking into account all relevant factors, and that the sentence was not manifestly excessive. Consequently, the appeal was dismissed, and the original sentence upheld.

The final orders of the court confirmed the dismissal of the appeal and the maintenance of the sentence imposed by the lower court. The court did not alter the sentence, finding no basis to conclude that it was plainly wrong or unjust. The appellant's appeal was therefore unsuccessful.

Orders