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Doumit v R

Doumit v R

Case [2011] NSWCCA 134 15 June 2011

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This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: Morrie Paul DOUMIT v R

Medium Neutral Citation: [2011] NSWCCA 134

Hearing Date(s): 6 June 2011

Decision Date: 15 June 2011

Jurisdiction:

Before: Hodgson JA at 1;
Hoeben J at 2;
Grove AJ at 3

Decision:
Appeal against sentence allowed.
Appellant re-sentenced.

Catchwords: Sentence - Ongoing supply of illicit drugs - Deemed supply of illicit drugs - Defect in Form 1 procedure - Erroneous reason stated for rejection of appellant's remorse - Cumulation of entire term on one count - Totality - Likely effect on sentence assessment.

Legislation Cited: Crimes (Sentencing Procedure) Act 1999

Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
Butters v R [2010] NSWCCA 1
Hili v The Queen [2010] HCA 45
Pearce v The Queen (1998) 194 CLR 610
R v Hammond (2000) 118 A Crim R 66
Regina v MMK (2006) 164 A Crim R 481

Texts Cited:

Category: Principal judgment

Parties: (Applicant) - Morrie Paul DOUMIT
(Respondent) - Regina

Representation

- Counsel: Counsel:
(Applicant) - P Hammill SC
(Respondent) - P Ingram SC

- Solicitors: Solicitors:
(Applicant) - Justin Lewis & Co
(Respondent) - S Kavanagh, Solicitor for Public Prosecutions

File number(s): 2008/18283

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Sorby DCJ

- Date of Decision: 31 August 2009

- Citation: 2008/11/1193 - R v Morrie Paul DOUMIT

- Court File Number(s) 2008/11/1193

Publication Restriction:

JUDGMENT

HODGSON JA: I agree with Grove AJ.
HOEBEN J: I agree with Grove AJ.
GROVE AJ: This is an application for leave to appeal against severity of sentence imposed by Sorby DCJ at Sydney District Court. The applicant pleaded guilty to 3 counts on an indictment charging on count 1, supplying a prohibited drug on 5 occasions between 5 February and 21 February 2008 constituted by 4 supplies of cocaine and 1 supply of methylamphetamine ("ongoing supply"), on count 2 having in possession for supply on 28 February 2008 72.34grams of methylenedioxymethylamphetamine (MDMA or Ecstasy) and on count 3 having in his possession for supply on 28 February 2008 298.4grams of gamma butyrolactone (GBL).
A Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 sought that there be taken into account on sentence 3 further charges. In executing a search warrant on 28 February 2008 at the applicant's home police located a bag containing $17,915 in cash, resealable plastic bags in 2 of which there was a combined total of 18.97grams of cocaine and another collection of plastic bags containing a total of 3.51grams of methylamphetamine. These findings led to charges of dealing with the proceedings of crime and (deemed) supply of the respective drugs. The Form 1 document relates to the applicant being "charged with the offence of supply prohibited drug on 28 February 2008". There was no identification of which…

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 Doumit v R

Details

AGLC: Doumit v R [2011] NSWCCA 134
Case: [2011] NSWCCA 134
Decision Date: 15 June 2011

CaseChat Overview and Summary

The case of Doumit v R involved the appellant, Doumit, who was convicted of various drug-related offences. The central issue before the court was whether the trial judge had erred in his assessment of the appellant's sentence. Specifically, the appellant contended that the judge had failed to properly consider the totality principle, which requires that the cumulative sentence for multiple offences be assessed in a way that avoids excessive punishment. Additionally, the appellant argued that the trial judge had erred in his handling of the deemed supply of illicit drugs, the cumulation of the entire term on one count, and the rejection of the appellant's remorse.

The court considered whether the trial judge had properly applied the principles of sentencing for multiple offences, particularly the requirement to avoid excessive punishment by considering the cumulative effect of the sentences. The court also examined whether the judge had correctly understood the concept of deemed supply and whether he had appropriately considered the appellant's remorse. Furthermore, the court assessed whether there was a defect in the Form 1 procedure and whether the erroneous reason given for rejecting the appellant's remorse had an effect on the sentence assessment.

The court found that the trial judge had indeed erred in his application of the totality principle and in his handling of the deemed supply of illicit drugs. The court concluded that the judge had not properly considered the cumulative effect of the sentences and had failed to adequately apply the principle of totality. The court also found that the trial judge had misapplied the concept of deemed supply and that the erroneous reason for rejecting the appellant's remorse had an effect on the sentence assessment. Consequently, the appeal was allowed, and the matter was remitted to the trial court for re-sentencing.

The final orders of the court were that the appeal be allowed, and the matter be remitted to the trial court for re-sentencing in accordance with the principles of totality and the correct application of deemed supply and remorse. The court emphasised the importance of proper sentencing practices in ensuring that sentences are fair and proportionate to the offences committed.

Orders