Application of Antoun El Hani - [2007] NSWSC 330

CITATION: Application of Antoun El Hani [2007] NSWSC 330

HEARING DATE(S): On written submissions

JUDGMENT DATE :
12 April 2007

JUDGMENT OF: Johnson J at 1

DECISION: Application under s.78 Crimes (Appeal and Review) Act 2001 refused.

CATCHWORDS: CRIMINAL LAW - application for inquiry or referral under s.78 Crimes (Appeal and Review) Act 2001 concerning sentence - applicant pleaded guilty to being knowingly concerned in importation of a commercial quantity of ecstasy contrary to s.233B(1)(d) Customs Act 1901 (Cth) - unsuccessful appeals against sentence to Court of Criminal Appeal and High Court of Australia - unsuccessful prior application for inquiry or referral under s.474D Crimes Act 1900 - scope of power under s.79(1) concerning federal offence - application based upon applicant's assistance to law enforcement authorities since sentence passed in District Court and appeal dismissed by Court of Criminal Appeal - application to Commonwealth Executive for release on licence under s.19AP Crimes Act 1914 (Cth) is appropriate avenue and not application under s.78 Crimes (Appeal and Review) Act 2001 - application refused

LEGISLATION CITED: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Customs Act 1901 (Cth)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912

CASES CITED: Application of Rendell (1987) 32 A Crim R 243
Application of Shepherd (Supreme Court of NSW, 13 September 1996, unreported)
Application of Pearson (1999) 46 NSWLR 148
Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 154 IR 310
Varley v Attorney General (NSW) (1987) 8 NSWLR 30
Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318
R v El Hani [2004] NSWCCA 162
R v Vo and Tran [2006] NSWCCA 165
El Hani v The Queen [2005] HCA Trans 146
Segal v Waverley Council (2005) 64 NSWLR 177
Scullion v R (Court of Criminal Appeal, 15 July 1992, unreported, BC9203142)
R v Munday (1981) 2 NSWLR 177
Douar v The Queen (2005) 159 A Crim R 154
R v Cartwright (1989) 17 NSWLR 243
R v Willard (2001) 120 A Crim R 450

PARTIES: Antoun El Hani (Applicant)

FILE NUMBER(S): SC 72010/06

COUNSEL: Applicant (in person)
Mr C Lonergan (NSW Attorney-General)
Mr C Dennis, Attorney-General's Department (Commonwealth Attorney-General)

SOLICITORS:
Mr W Abadee, Crown Solicitor's Office (NSW Attorney-General)

LOWER COURT DATE OF DECISION: ---

LOWER COURT MEDIUM NEUTRAL CITATION: ---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

12 April 2007

72010/06 Application of Antoun El Hani
JUDGMENT

1 JOHNSON J: The Applicant, Antoun El Hani, has made application under s.474D Crimes Act 1900 for an inquiry or referral to the Court of Criminal Appeal with respect to a sentence imposed upon him following his plea of guilty to one count of being knowingly concerned in the importation of a commercial quantity of ecstasy.

The Statutory Scheme for Review

Applicable Statutory Provisions

2 On 23 February 2007, the provisions contained in Part 13A (ss.474B-474N) Crimes Act 1900 were repealed and re-enacted as Part 7 (ss.76-88) Crimes (Appeal and Review) Act 2001. An…

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.

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Details

Case: [2007] NSWSC 330
Decision Date: 12 April 2007

CaseChat Overview and Summary

The Applicant, Antoun El Hani, sought an inquiry or referral under section 78 of the Crimes (Appeal and Review) Act 2001 regarding their sentence. Mr El Hani had pleaded guilty to being knowingly involved in the importation of a commercial quantity of ecstasy, in contravention of section 233B(1)(d) of the Customs Act 1901 (Cth). The Federal Court of Australia was tasked with determining the merits of the application.

The central legal issues revolved around the scope of the Court's power under section 79(1) to inquire into or refer a sentence for a federal offence and the appropriateness of the Applicant's application for relief under section 78, given their prior unsuccessful appeals and applications for review. The Court had to consider whether Mr El Hani's assistance to law enforcement authorities since his sentence in the District Court and subsequent dismissal of his appeal by the Court of Criminal Appeal warranted a departure from the usual avenues for seeking relief.

In determining the application, the Court found that the scope of section 78 was not intended to provide a further opportunity for review of sentences for federal offences, especially when other avenues for relief were available. The Court emphasised that the primary purpose of section 78 was to address cases where there had been an error in the exercise of the Court's sentencing discretion. Given that Mr El Hani had already exhausted his avenues for appeal and had not demonstrated any error in the exercise of the Court's sentencing discretion, the application was deemed inappropriate. The Court concluded that the Applicant's assistance to law enforcement authorities since his sentencing was a matter to be considered by the Commonwealth Executive for potential release on licence under section 19AP of the Crimes Act 1914 (Cth), rather than through an application under section 78. Consequently, the application was refused.

Orders