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Charbaji v The Queen

Charbaji v The Queen

Case [2011] NSWCCA 181 11 August 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Charbaji v R [2011] NSWCCA 181
Hearing dates: 9 August 2011
Decision date: 11 August 2011
Before: Whealy JA at 1
Buddin J at 2
Harrison J at 39
Decision:
Leave to appeal granted
Appeal dismissed

Catchwords: Criminal law - appeal against sentence - offence of supplying cocaine - whether error in consideration of prior record - whether error in assessment of objective gravity of offence - whether error in use of fact that offence committed on conditional liberty - whether sentence was manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Cage [2006] NSWCCA 304
Corby v R [2010] NSWCCA 146
Khoury v R [2011] NSWCCA 118
Sivell v R [2009] NSWCCA 286
Locke v R [2010] NSWCCA 296
Mansour v R [2011] NSWCCA 28
R v Walker [2005] NSWCCA 109
Doolan v R (2006) 160 A Crim R 54
Veen v The Queen (No 2) (1988) 164 CLR 465
R v Price [2005] NSWCCA 285
R v McNaughton (2006) 66 NSWLR 566
Frigiani v R [2007] NSWCCA 81
Chaplin v R (2006) 160 A Crim R 85
Lee v R [2011] NSWCCA 169
R v Mills (2005) 154 A Crim R 40
Van Can Ha v R [2008] NSWCCA 141
Category: Principal judgment
Parties: Safwan Charbaji (Applicant)
Regina (Respondent)
Representation: P Lange (Applicant)
T Smith (Respondent/Crown)
Lawyers Corp Pty Ltd (Applicant)
S Kavanagh (Respondent/Crown)

File Number(s): 2009/200262
Decision under appeal

Date of Decision:

2010-08-27 00:00:00

Before:

Zahra DCJ

File Number(s):

2009/200262

Judgment

WHEALY JA: I agree with Buddin J and the orders he proposes .

BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court. The applicant adhered to his plea, which was first entered in the Local Court, to an offence of supplying cocaine. That offence attracts a maximum penalty of 15 years imprisonment and/or a fine of 2000 penalty units. He also pleaded guilty to an offence of dealing with property suspected of being the proceeds of crime, being a quantity of cash, as well as an offence of possessing a prescribed restricted substance, namely a steroid. In respect of the supply offence, the applicant was sentenced to an overall term of imprisonment of 5 years 6 months to commence on 31 August 2009 and to expire on 28 February 2015 with a non-parole period of 3 years to expire on 30 August 2012. A concurrent fixed term of 1 month was imposed in respect of the proceeds of crime offence whilst the offence of possessing the steroid was proved but dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 .

The facts are not in dispute and can be shortly stated. Police executed a search warrant upon the applicant's premises in Bankstown on 31 August 2009. The applicant and two young children were present at the time. A total of $13,035 in cash was located in the applicant's…

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 Charbaji v The Queen

Details

AGLC: Charbaji v The Queen [2011] NSWCCA 181
Case: [2011] NSWCCA 181
Decision Date: 11 August 2011

CaseChat Overview and Summary

The matter of Charbaji v The Queen was heard by the High Court of Australia, which was asked to consider an appeal against the sentence imposed on the appellant for the offence of supplying cocaine. The appellant was convicted and sentenced to a term of imprisonment, and subsequently sought to have the sentence reviewed on the grounds that it was manifestly excessive. The primary issues for the court were whether the sentencing judge had erred in considering the appellant's prior criminal record, whether the court had correctly assessed the objective seriousness of the offence, and whether it was appropriate to take into account the fact that the offence was committed while the appellant was on conditional liberty.

The court determined that the sentencing judge had not erred in considering the appellant's prior criminal record. The court found that the prior convictions were relevant to the appellant's culpability and the risk of re-offending, and therefore appropriately taken into account. The court also concluded that the sentencing judge had correctly assessed the objective seriousness of the offence, noting the significant harm that can result from the supply of dangerous drugs. In relation to the fact that the offence was committed while the appellant was on conditional liberty, the court found that this was a relevant factor that properly informed the sentence. The court held that the sentence imposed was not manifestly excessive, and accordingly dismissed the appeal against sentence.

Orders