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Chandab v R

Chandab v R

Case [2021] NSWCCA 186 11 August 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chandab v R [2021] NSWCCA 186
Hearing dates: 16 July 2021
Date of orders: 11 August 2021
Decision date: 11 August 2021
Before: Leeming JA at [1]
Wilson J at [2]
Ierace J at [84]
Decision:
(1) Leave to appeal granted
(2) Appeal dismissed

Catchwords:
CRIME – appeal against sentence – drug and firearms offences – possess prohibited firearm – assessment made of the objective gravity of the firearms offence – loaded prohibited pistol – applicant subject to s firearms prohibition order – applicant a member of a criminal gang – question of connection with drug supply offence - above mid-range seriousness – whether assessment reasonably open – question of manifest excess

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment (Firearms Offences) Bill 2015 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Alameddine v R [2020] NSWCCA 232
Ali v R [2010] NSWCCA 35
Ayshow v R [2011] NSWCCA 240
El Masri [2014] NSWCCA 13
House v The King (1936) 55 CLR 499; [1936] HCA 40
Luu v R [2008] NSWCCA 285
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43
R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
Raniga v R [2016] NSWCCA 36
Regina v AA [2006] NSWCCA 55
Salafia v R [2015] NSWCCA 141
Sumrein v R [2019] NSWCCA 83
SY v R [2020] NSWCCA 320
Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170

Category: Principal judgment
Parties: Mazen Chandab (Applicant)
Regina (Crown)
Representation:
Counsel:
D Barrow (Applicant)
C Gleeson (Crown)
Solicitors:
Zahr Partners (Applicant)
Solicitors for Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2018/33355
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

26 June 2020

Before:

Judge Girdham SC

File Number(s):

2018/33355

Judgment

LEEMING JA: I agree with Wilson J and Ierace J that though there should be a grant of leave, the appeal should be dismissed. Both of their Honours agree, as do I, that it was open to the primary judge to conclude that the objective seriousness for the firearms offence was above mid-range. That suffices to resolve ground 1 of the appeal. To the extent that there is a difference of approach in the review of the finding of objective seriousness made by the sentencing judge, it is not necessary to resolve that difference for the purposes of this appeal, and I refrain from doing so, particularly in circumstances where, as Ierace J…

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 Chandab v R

Details

AGLC: Chandab v R [2021] NSWCCA 186
Case: [2021] NSWCCA 186
Decision Date: 11 August 2021

CaseChat Overview and Summary

The case of Chandab v R involved an appeal against sentence for offences related to drugs and firearms. The applicant was found to have possessed a prohibited firearm, a loaded pistol, while being subject to a firearms prohibition order. Additionally, the applicant was connected with a drug supply offence and was a member of a criminal gang. The court was required to determine whether the sentence imposed was manifestly excessive and whether the assessment of the objective seriousness of the firearms offence was reasonably open.

The primary legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The court had to consider the seriousness of the firearms offence and its connection with the drug supply offence. The court also had to assess whether the sentence was reasonably open and whether the applicant's membership in a criminal gang was a relevant factor in determining the severity of the sentence. Furthermore, the court had to consider whether the assessment of the objective seriousness of the firearms offence was reasonably open, taking into account the fact that the firearm was loaded and the applicant was subject to a firearms prohibition order.

In determining the outcome, the court considered the totality of the circumstances surrounding the case. The court found that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be reasonably imposed for the offences committed. The court also found that the assessment of the objective seriousness of the firearms offence was reasonably open, taking into account the fact that the firearm was loaded and the applicant was subject to a firearms prohibition order. The court held that the applicant's membership in a criminal gang was a relevant factor in determining the severity of the sentence, but it was not the sole determining factor.

The court dismissed the appeal against sentence, finding that the sentence imposed was not manifestly excessive and that the assessment of the objective seriousness of the firearms offence was reasonably open. The final orders of the court were that the appeal against sentence be dismissed and that the original sentence be upheld.

Orders