Aljubouri v The King - [2023] NSWCCA 29

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Aljubouri v R [2023] NSWCCA 29
Hearing dates: 28 November 2022
Date of orders: 28 November 2022
Decision date: 22 February 2023
Before: Beech-Jones CJ at CL at [1]
Walton J at [2]
Yehia J at [63]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
(3) Reasons for judgment is reserved.

Catchwords:
CRIMINAL LAW – appeals - appeal against sentence – manufacture a large commercial quantity of prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) – two grounds of appeal – appeal predicated upon the principles of parity – no error established – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeals Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)

Cases Cited:
Borg v R [2019] NSWCCA 129
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Mir v The Queen [2022] NSWCCA 132
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Category: Principal judgment
Parties: Mohammed Aljubouri (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Francis (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Hanna Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2019/00106247
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 September 2021

Before:

Whitford SC DCJ

File Number(s):

2019/106247; 2019/106348; 2019/304413; 2019/106518; 2019/106437

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mohammed Aljubouri (the applicant) pleaded guilty to a single count that between 4 March 2019 and 5 April 2019 he manufactured an amount of a prohibited drug, namely, 5,820 grams of methylamphetamine, which was no less than a large commercial quantity applicable to that prohibited drug, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). On 17 September 2021, Whitford SC DCJ sentenced the applicant to imprisonment for 7 years and 6 months’ imprisonment, with a non-parole period of 4 years. By way of a Form 1, the sentence took into account the offence of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW).

The facts of the offending can be briefly summarised as follows. The applicant and four co-offenders each played different roles in an operation for the manufacture of methylamphetamine. The applicant was responsible for leasing storage units used to store the waste products of the manufacture, which he visited on occasion, and for transporting a substantial sum of cash related to the drug manufacture. The applicant occasionally attended the unit where the cook occurred and knew that a quantity of methylamphetamine considerably over 500 grams was being manufactured.

The applicant sought leave to appeal from his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on two grounds. First, that the sentencing…

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 Aljubouri v The King

Details

AGLC: Aljubouri v The King [2023] NSWCCA 29
Case: [2023] NSWCCA 29
Decision Date: 22 February 2023

CaseChat Overview and Summary

The appellant, Aljubouri, appealed against the sentence imposed by the Supreme Court of New South Wales. He was found guilty of manufacturing a large commercial quantity of a prohibited drug in breach of section 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The appeal focused on two primary grounds, which were centered around the principle of parity in sentencing. The appellant argued that his sentence should be consistent with sentences imposed in similar cases. The Court of Appeal was tasked with determining whether the trial judge had erred in sentencing, and if the appeal was predicated upon the principle of parity, whether any such error had been established.

In examining the appeal, the Court of Appeal assessed whether the trial judge had appropriately considered all relevant factors and whether the sentence imposed was commensurate with those in similar cases. The Court noted that the appellant's sentence was within the statutory maximum and that the trial judge had considered various mitigating and aggravating factors. The Court held that the trial judge had appropriately exercised judicial discretion and that no error in the application of the principle of parity had been demonstrated by the appellant. The Court further noted that the appellant had not established that his sentence was disproportionate when compared to similar cases.

The Court of Appeal concluded that the appeal did not succeed and dismissed the appeal. The Court found that there was no basis to interfere with the sentence imposed by the trial judge. The Court granted leave to appeal but ultimately dismissed it due to the lack of any established error in the trial judge’s sentencing process. Consequently, the original sentence imposed by the Supreme Court remained in place.

Orders