Ahmad v R - [2019] NSWCCA 198

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ahmad v R [2019] NSWCCA 198
Hearing dates: 2 August 2019
Date of orders: 26 August 2019
Decision date: 26 August 2019
Before: Basten JA at [1];
Wright J at [2];
Wilson J at [3]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.
Catchwords: CRIMINAL LAW – sentence – appeal against sentence – Commonwealth drug offences – State drug and fraud offences – whether sentence imposed for a discrete offence was outside the available range – utility of sentencing statistics – whether a custodial sentence was warranted for discrete offence – manifest excess – question of parity with co-offender
Legislation Cited: Crimes Act 1900 (NSW), ss 192E, 192G
Crimes Act 1914 (Cth), s 16BA
Criminal Code Act 1995 (Cth), ss 11, 307
Criminal Procedure Act 1986 (NSW), s 166
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9, 10A, 33
Drug Misuse and Trafficking Act 1985 (NSW), s 10
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dunn v R [2018] NSWCCA 108
Green v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
R v Fernando (1992) 76 A Crim R 58
R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
SS v R [2016] NSWCCA 197
Windle v R [2011] NSWCCA 277
Category: Principal judgment
Parties: Youssef Ahmad (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Barrow for Applicant
R Ranken for Respondent
Solicitors:
Adam Houda for Applicant
Office of the Director of Public Prosecutions (Cth) for Respondent

File Number(s): 2016/00177151
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 April 2018

Before:

King SC DCJ

File Number(s):

2016/00177151

Judgment

BASTEN JA: I agree with Wilson J.
WRIGHT J: I agree with Wilson J.
WILSON J: On 26 April 2017 the applicant pleaded guilty to four offences: two offences against State law; and two contrary to the Commonwealth Criminal Code (“the Code”). He was committed to the District Court for sentence, appearing before King SC DCJ for that purpose on 9 November 2017 (when he adhered to the pleas earlier entered), and 9 February 2018. Sentence was imposed on the applicant, and upon a co-offender, Mohammed El-Khair, on 6 April 2018.
The State offences are an offence of obtaining a financial advantage, being a sum of $59,458, by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (“the Crimes Act”); and an offence of possessing a prohibited drug (3.8 grams of cocaine) contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the “DMTA”). The latter, being a summary offence, was before the District Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). When sentence was imposed for the…

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 Ahmad v R

Details

AGLC: Ahmad v The Queen [2019] NSWCCA 198
Case: [2019] NSWCCA 198
Decision Date: 26 August 2019

CaseChat Overview and Summary

The appellant was convicted on a number of charges including trafficking in a commercial quantity of a prohibited drug and defrauding the Commonwealth. The appellant appealed against the sentence imposed by the trial judge, arguing that the sentence was manifestly excessive. The appellant was sentenced to imprisonment for five years for one of the counts, a sentence which the appellant submitted was manifestly excessive. The respondent submitted that the sentence was manifestly excessive only if the sentence imposed was outside the available range. The question of whether the sentence imposed for the discrete offence was outside the available range, and whether the sentence imposed for that offence was manifestly excessive, depended on the utility of sentencing statistics. The appellant also submitted that the trial judge had failed to adequately consider the parity of sentence with his co-offender, who had received a lesser sentence. The appeal was dismissed. The sentence imposed was within the range of sentences that could be imposed for the discrete offence and was not manifestly excessive. The trial judge had properly exercised his discretion in determining the appropriate sentence. The trial judge had considered the parity of sentence with the co-offender and had given reasons for imposing a higher sentence on the appellant. The court was satisfied that the sentence imposed was not manifestly excessive and that the trial judge had properly exercised his discretion in determining the appropriate sentence. The appeal was dismissed.

No orders as to costs were made.

Orders