Daniel Nawar v The Queen - [2018] VSCA 6

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0242

DANIEL NAWAR	Applicant
v
THE QUEEN	Respondent

S APCR 2017 0177

METIN TURKOZU	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	WHELAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 January 2018
DATE OF JUDGMENT:	2 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 6
JUDGMENT APPEALED FROM:	DPP v Nawar; DPP v Turkozu [2017] VCC 1015 (Judge Smith)

---

CRIMINAL LAW – Appeals against sentence – Guilty pleas to trafficking in small quantity of ice and other charges – Sentence of 3 years’ imprisonment for trafficking charge – Crown concession that sentence manifestly excessive – Appeals allowed – Appellants resentenced to 2 years’ imprisonment for trafficking charge.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant Nawar	Mr R F Edney	David Barrese & Associates
For the Applicant Turkozu	Ms J Warren	Emma Turnbull Lawyers
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA

KYROU JA:

Introduction and summary

The applicants pleaded guilty to the charges set out in the following tables and, on 21 July 2017, they were sentenced as set out in those tables.[1]
[1]DPP v Nawar; DPP v Turkozu [2017] VCC 1015 (‘Sentencing remarks’).

DANIEL NAWAR

Charge Offence Maximum Sentence Cumulation

1 Trafficking in a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 71AC] 15 years 3 years Base

3 Recklessly causing injury [Crimes Act 1958 s 18] 5 years 2 years 1 year

4 Possession of a firearm while a prohibited person [Firearms Act 1996 s 5(1)] 10 years 1 year 6 months

Related Summary Charges

14 Committing an indictable offence while on bail [Bail Act 1977 s 30B] 3 months 3 months Nil

16 Possession of cartridge ammunition without a permit [Firearms Act 1996 s 124(1)] 40 penalty units $1,000 fine -

Total Effective Sentence: 4 years, 6 months

Non-Parole Period: 3 years

Pre-Sentence Detention Declaration: 531 days

Section 6AAA Statement: 5 years, 6 months

METIN TURKOZU

Charge Offence Maximum Sentence Cumulation

1 Trafficking in a drug of dependence 15 years 3 years Base

2 Recklessly causing injury 5 years 2 years 1 year

Total Effective Sentence: 4 years

Non-Parole Period: 2 years, 4 months

Pre-Sentence Detention Declaration: 213 days

Section 6AAA Statement: 5 years

In the case of Nawar, in addition to the plea, the judge heard an appeal against an aggregate sentence of 9 months’ imprisonment imposed by the Magistrates’ Court on unrelated burglary, theft and recklessly causing injury offences which were committed in November 2015. The judge dismissed the appeal and affirmed the aggregate sentence. He ordered that 5 months of the aggregate sentence be served cumulatively on the sentence of 4 years and 6 months’ imprisonment imposed for the current offences, making an overall total effective sentence of 4 years and 11 months’ imprisonment.

Nawar seeks leave to appeal against sentence on the ground that the sentence imposed for the trafficking charge and the total effective…

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 Daniel Nawar v The Queen

Details

AGLC: Daniel Nawar v The Queen [2018] VSCA 6
Case: [2018] VSCA 6
Decision Date: 2 February 2018

CaseChat Overview and Summary

In the High Court of Australia, Daniel Nawar appealed against the sentence imposed by the lower court following his guilty plea to trafficking in a small quantity of methamphetamine and other related charges. The original sentence was 3 years' imprisonment for the trafficking charge, among other sentences for the additional charges. The Crown conceded that the sentence was manifestly excessive, leading to the appeal.

The legal issues before the court involved the appropriate sentence for the trafficking charge, given the Crown's concession and the circumstances of the case. The court had to determine whether the original sentence was indeed manifestly excessive and, if so, what an appropriate sentence would be. The court also considered the principles of sentencing, including the gravity of the offence and the need for deterrence and rehabilitation.

The High Court found that the original sentence was indeed manifestly excessive, given the small quantity of the drug trafficked and the Crown's concession. The court resentenced Nawar to 2 years' imprisonment for the trafficking charge, reducing the original sentence by one-third. The court emphasised the importance of proportionality in sentencing and the need to consider all relevant factors, including the plea of guilty and the circumstances of the offence. The court also noted the significance of the Crown's concession in guiding the appropriate sentence.

The final orders of the court were that the appeals were allowed, and Nawar was resentenced to 2 years' imprisonment for the trafficking charge. The sentences for the other charges were not altered. The court's decision provided clarity on the appropriate sentence for small-scale drug trafficking offences and the role of the Crown's concession in sentencing.

Orders