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Assam v R

Assam v R

Case [2019] NSWCCA 12 15 February 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Assam v R [2019] NSWCCA 12
Hearing dates: 17 October 2018
Decision date: 15 February 2019
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [2];
Price J at [158]
Decision:
(1) Leave to appeal against sentence granted.
(2) The sentence imposed on Lyle Assam on 17 November 2017 is quashed and in lieu thereof, Assam is sentenced to imprisonment with a non-parole period of 6 years and 9 months, commencing 25 May 2016 and expiring 24 February 2023, with a balance of term of 3 years expiring 24 February 2026.

Catchwords: CRIMINAL LAW – sentence appeal – pleas of guilty to two counts of supply a large commercial quantity of a prohibited drug – two counts of supplying a commercial quantity of a prohibited drug – two counts of supplying an indictable quantity of a prohibited drug – one count of recklessly deal with the proceeds of crime ($83,725) – use of undercover operative by police – applicant aged 27 with no previous criminal record – primary motivation greed – whether evidence supported finding by judge that applicant was a “highly trusted upper echelon participant” – whether parity principle observed – whether applicant had a legitimate sense of grievance having regard to the sentence imposed on Azhar Abdul – parity ground of appeal made out – appeal allowed – applicant re-sentenced.
Legislation Cited: Crimes Act 1900 (NSW) – s 193B
Drug Misuse and Trafficking Act 1985 (NSW) – s 25
Poisons and Therapeutic Goods Act 1966 (NSW) – s 16
Cases Cited: AB v R [2014] NSWCCA 339
Aoun v R [2011] NSWCCA 284
Fenech v R [2018] NSWCCA 160
GAS v The Queen [2004] HCA 22; 217 CLR 198
Leslie v R [2009] NSWCCA 203
R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40
Wat v R [2017] NSWCCA 62
Category: Principal judgment
Parties: Lyle Assam – Applicant
Regina – Respondent Crown
Representation:
Counsel:
T Game SC/A Chhabra – Applicant
B Hatfield – Respondent Crown
Solicitors:
Hanna Legal – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2016/161105
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 November 2017

Before:

King SC DCJ

File Number(s):

2016/161105

JUDGMENT

BATHURST CJ: I agree with the orders proposed by Hoeben CJ at CL and with his Honour’s reasons.
HOEBEN CJ at CL:

Offences and sentence

Lyle Assam (Assam), together with Azhar Abdul, Lopeti Joshua Matu and Lecx Purdie, appeared for sentence in the District Court at Gosford on 4 September and 17 November 2017 before his Honour Judge King SC. Each offender had pleaded guilty to participating to varying degrees in the supply of prohibited drugs.
Assam was convicted of the following offences for which his Honour provided indicative sentences.

(a) Sequence 1: Supply large commercial quantity of a prohibited drug (1.039kg of MDMA) contrary to s 25(2) of the Drug Misuse and Trafficking…

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 Assam v R

Details

AGLC: Assam v R [2019] NSWCCA 12
Case: [2019] NSWCCA 12
Decision Date: 15 February 2019

CaseChat Overview and Summary

Assam v R was a criminal case heard in the court, where the applicant, Assam, appealed against his sentence. Assam had entered pleas of guilty to multiple charges, including the supply of a large commercial quantity of a prohibited drug on two occasions, the supply of a commercial quantity of a prohibited drug on two occasions, the supply of an indictable quantity of a prohibited drug on two occasions, and recklessly dealing with the proceeds of crime in the amount of $83,725. The case involved the use of an undercover operative by the police. Assam, who was 27 years old and had no previous criminal record, was described as being motivated primarily by greed. The central issue before the court was whether the evidence supported the judge's finding that Assam was a "highly trusted upper echelon participant" in the drug supply operation. Additionally, the court examined whether the parity principle was observed and if Assam had a legitimate sense of grievance regarding the sentence imposed on another individual, Azhar Abdul. The court found that the parity ground of appeal was successful, leading to the allowance of the appeal and the re-sentencing of the applicant.

The legal issues that the court needed to address included the sufficiency of the evidence to support the judge's characterisation of Assam as a "highly trusted upper echelon participant" and whether the parity principle had been correctly applied in sentencing. The parity principle requires that sentences for similar offences be comparable, unless there are exceptional circumstances justifying a different sentence. Furthermore, the court considered whether Assam's sense of grievance, based on the perceived disparity in sentencing between himself and Azhar Abdul, was legitimate. The applicant argued that the disparity was unjust and that the parity principle had not been properly observed.

The court carefully reviewed the evidence and concluded that it did not sufficiently support the judge's finding that Assam was a "highly trusted upper echelon participant." The court found that the evidence did not clearly demonstrate the level of trust and responsibility ascribed to Assam by the judge. Additionally, the court determined that the parity principle had not been correctly applied, as the sentences imposed on Assam and Azhar Abdul were not sufficiently comparable. The court found that Assam had a legitimate sense of grievance due to the perceived disparity in sentencing, which warranted a reconsideration of the sentence. As a result of these findings, the appeal was allowed, and the applicant was re-sentenced.

Orders