Arab v The Queen

Case [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

  1. MACFARLAN JA: I agree with Rothman J.

  2. 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.

  3. The applicant raises one ground of appeal, namely, “the disparity of sentence as between the [applicant] and his co-offenders”.

Offences

  1. 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:

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

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Arab v The Queen [2019] NSWCCA 39
Case
[2019] NSWCCA 39
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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