Arab v The Queen - [2019] NSWCCA 39

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Arab v R [2019] NSWCCA 39
Hearing dates: 21 November 2018
Date of orders: 01 March 2019
Decision date: 01 March 2019
Before: Macfarlan JA at [1];
Rothman J at [2];
R A Hulme J at [63]
Decision:
(1)   Time for the filing of the appeal extended to the date upon which the Notice to Appeal was lodged, namely, 21 September 2018;

(2)   Leave to appeal granted;
(3)   Appeal dismissed.
Catchwords: CRIME – CRIMINAL APPEAL – sentence appeal – four co-offenders, three of whom charged with more serious offences than applicant – applicant’s sentence significantly less than co-offenders – applicant claims justifiable sense of grievance and that difference between offenders not adequately reflected in the differentiation in sentence – different sentences rationally reflect difference between offence and offenders – differentiation not plainly unjust or unreasonable – appeal refused.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)
Crimes Act 1900 (NSW), s 193B(2)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
Firearms Act 1996 (NSW), s 36(1),
Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases Cited: Fenech v R [2018] NSWCCA 160
Grabovac v R [2018] NSWCCA 100
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
Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Darwich [2018] NSWCCA 46
Why v R [2017] NSWCCA 101
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Omer Arab (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
F Veltro (Crown)
Solicitors:
Allied Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2015/326584
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2017] NSWDC 350

Date of Decision:

12 December 2017

Before:

Berman SC DCJ

File Number(s):

2015/326584; 2015/326590; 2015/327147; 2015/327147

Judgment

MACFARLAN JA: I agree with Rothman J.
ROTHMAN J: The applicant, Omer Arab, seeks leave to appeal against the severity of the sentence imposed upon him in the District Court. If leave to appeal is granted, the applicant seeks to appeal. The ground for leave to appeal and, if leave be granted, the appeal, is the same and the leave to appeal and appeal were heard at the same time.
The applicant raises one ground of appeal, namely, “the disparity of sentence as between the [applicant] and his co-offenders”.

Offences

There is no controversy on appeal as to the findings of fact made by the sentencing judge, Berman SC DCJ. The applicant pleaded guilty to three offences:

supply of not less than an indictable quality of a prohibited drug, namely…

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 Arab v The Queen

Details

AGLC: Arab v The Queen [2019] NSWCCA 39
Case: [2019] NSWCCA 39
Decision Date: 01 March 2019

CaseChat Overview and Summary

Arab v The Queen involved a criminal appeal by the applicant against his sentence. The applicant was one of four co-offenders involved in an incident, with three others charged with more serious offences than the applicant. The applicant argued that his sentence was significantly less than those of his co-offenders and that the difference between the offences and offenders was not adequately reflected in the sentences. The central legal issues revolved around whether the differences in the sentences were rationally justified and whether the applicant's sentence was plainly unjust or unreasonable.

The court examined the principles of sentencing and the differentiation between the applicant's and his co-offenders' sentences. It considered the severity of the offences and the roles played by the co-offenders. The court held that the different sentences rationally reflected the differences in the offences and the roles of the offenders. The court found that the applicant’s sentence, while lower than those of his co-offenders, was not plainly unjust or unreasonable. The applicant’s sense of grievance did not override the rational basis for the sentencing differences. Consequently, the court rejected the appeal.

The final orders of the court were that the appeal against the sentence was dismissed, confirming the original sentence as appropriate and proportionate to the applicant’s role and the nature of the offence.

Orders