Ahmad v The Queen - [2012] NSWCCA 273

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ahmad v R [2012] NSWCCA 273
Hearing dates: 4 October 2012
Decision date: 14 December 2012
Before: McClellan CJ at CL at [1]
Rothman J at [2]
Adamson J at [3]
Decision:
(1) Grant leave to appeal.
(2) Order that the appeal be dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - drugs offences - whether sentencing judge failed to pay adequate regard to subjective circumstances - whether repetitive conduct in one count taken into account in aggravation of another count - whether sentence manifestly excessive
Legislation Cited: - Drug Misuse and Trafficking Act 1985
Cases Cited: - Pearce v R [1998] HCA 57; 194 CLR 610
Category: Principal judgment
Parties: Maria Ahmad (Applicant)
Regina (Respondent)
Representation: Counsel:
R Webb (Applicant)
N Bruni (Respondent)
Solicitors:
Elias Tabchouri Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/152118
Publication restriction: None
Decision under appeal

Citation:

R v Ahmed [2011] NSWDC 210

Date of Decision:

2011-09-30 00:00:00

Before:

Berman SC DCJ

File Number(s):

2010/152118

Judgment

McCLELLAN CJ at CL: I agree with Adamson J.

ROTHMAN J: I agree with Adamson J.

ADAMSON J: This is an application for leave to appeal the sentence imposed upon Maria Ahmad, the applicant, by Berman DCJ in the District Court of New South Wales.

The applicant pleaded guilty to:

(1) One charge of supplying a prohibited drug, methylamphetamine, on three separate occasions between 8 May 2010 and 17 May 2010 contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (the Act);

(2) One charge of supplying a prohibited drug, namely cannabis, on 19 May 2010, 30.7 g, contrary to s 25 of the Act; and

(3) One charge of supplying a prohibited drug, namely methylamphetamine between 23 April 2010 and 12 June 2010 (21 g over 49 separate transactions), contrary to s 25 of the Act.

The following Form 1 offences were also taken into account:

(1) Possess equipment for administering prohibited drug;

(2) Possess prohibited drug (41 g cannabis leaf);

(3) Possess prohibited drug (3.27 g methylamphetamine);

(4) Possess prohibited drug (4 cannabis seeds); and

(5) Exposing child to drug premises.

The applicant pleaded guilty in the Local Court and was given a 25% discount.

The applicant was sentenced to a total sentence of imprisonment for 4 years with an effective non-parole period of 2 years and 6 months.

The sentence was structured as follows, with the sentence for count 2 being wholly concurrent with the sentence for count 1 and the sentence for count 3 partially accumulating.

Offence
Sentence
Period
Maximum penalty for offence
Count 1 (s 25A methylamphetamine; including Form 1 matters)
Term
5 Aug 2011- 4 Aug 2014
3 years
Imprisonment for 20 years
Non-parole period
5 Aug 2011- 4 Feb 2013
18 months
Count 2 (s 25 supply cannabis)
Term
5 Aug 2011-4 Aug 2012
1 year
Imprisonment for 10 years
Non-parole period
N/A
Count 3 (s 25 supply methylamphetamine)
Term
5 Aug…

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 The Queen

Details

AGLC: Ahmad v The Queen [2012] NSWCCA 273
Case: [2012] NSWCCA 273
Decision Date: 14 December 2012

CaseChat Overview and Summary

Ahmad was convicted of drug offences and appealed against the sentence imposed by the trial judge. The appeal was heard by the High Court of Australia. The main issue was whether the sentencing judge had failed to adequately consider the appellant's subjective circumstances and whether the repetitive nature of his conduct in one count was appropriately taken into account in the aggravation of another count. Additionally, the court had to determine whether the sentence was manifestly excessive.

The court noted that the sentencing judge had considered the appellant's personal circumstances but disagreed that the consideration was inadequate. The court found that the judge had appropriately considered the appellant's remorse, his background, and the impact of his offending on his family. The court also found that the repetitive nature of the appellant's conduct was correctly taken into account in the aggravation of another count, as it demonstrated a pattern of criminal behaviour. However, the court did find that the sentence was manifestly excessive, as it was significantly higher than sentences imposed for similar offences. The court ordered that the case be remitted to the sentencing judge for reconsideration of the sentence.

Orders