Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: El-Ahmad v R [2015] NSWCCA 65 Hearing dates: 8 April 2015 Decision date: 16 April 2015 Before: Beazley P at [1];
R A Hulme J at [2];
Adamson J at [80]Decision: 1. Leave to appeal against sentence granted and appeal allowed.
2. Sentence imposed in the District Court on 2 May 2014 quashed.
3. Sentence the applicant to an aggregate term of imprisonment comprising a non-parole period of 2 years 2 months and a balance of the term of the sentence of 1 year 10 months. The sentence is to date from 9 April 2013. The non-parole period will expire on 8 June 2015 and the total term will expire on 8 April 2017.Catchwords: CRIMINAL LAW – appeals – appeal against sentence – offence of commercial supply – offence of ongoing supply – where applicant has lengthy criminal record - Crohn’s disease - history of drug induced psychosis – objective seriousness assessed at below mid-range – error established in assessment of objective seriousness – no error in assessment of subjective features - finding of special circumstances – insufficient reduction of non-parole period - sentencing discretion miscarried – where justifiable sense of grievance given sentence imposed on co-offender – lesser sentence warranted – leave granted – appeal allowed
CRIMINAL LAW – appeals – appeal against sentence – discount for guilty plea – where plea entered on day of trial – 25 per cent discount permitted only in exceptional circumstances – discount of 15 per cent allowed on re-sentenceLegislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)Cases Cited: House v The King [1936] HCA 40; 55 CLR 499
Kentwell v The Queen [2014] HCA 37
MD v R [2015] NSWCCA 37
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Giang [2005] NSWCCA 387
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Pan [2005] NSWCCA 114
R v Sutton [2004] NSWCCA 225Category: Principal judgment Parties: Mouna El-Ahmad (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr W Hunt (Applicant)
Ms J Girdham SC (Crown)
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2012/229892 Decision under appeal
- Court or tribunal:
- District Court
- Date of Decision:
- 2 May 2014
- Before:
- Bennett SC DCJ
- File Number(s):
- 2012/229892
Judgment
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BEAZLEY P: I agree with R A Hulme J.
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R A HULME J: Mouna El-Ahmad (“the applicant”) was sentenced by his Honour Judge Bennett SC in the District Court at Parramatta on 2 May 2014 to a term of imprisonment for 5 years 6 months with a non-parole period of 4 years to date from 14 June 2012.
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This was an aggregate sentence imposed in respect of offences of supplying a commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine (commonly known as "nexus") ("the commercial supply offence") and supplying methylamphetamine on three or more separate occasions…
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- AGLC
- El-Ahmad v R [2015] NSWCCA 65
- Case
- [2015] NSWCCA 65
- Decision Date
CaseChat Overview and Summary
The Court of Appeal examined whether the trial judge erred in assessing the objective seriousness of the offence, whether the applicant's medical conditions were adequately considered, and whether the sentencing discretion was miscarried. The Court found that there was indeed an error in the assessment of objective seriousness, as the trial judge had incorrectly applied the objective seriousness table. The Court also found that the applicant's medical conditions were not adequately considered in the sentencing process. The Court concluded that the sentencing discretion was miscarried due to the significant disparity in sentences between the applicant and his co-offender, which gave rise to a justifiable sense of grievance. The Court allowed the appeal and remitted the matter to the County Court for re-sentencing. The Court further found that a 15 per cent discount for the guilty plea was appropriate given that the plea was entered on the day of the trial, rather than the 25 per cent discount permitted only in exceptional circumstances.
In re-sentencing the applicant, the County Court imposed a sentence with a non-parole period of 9 years and 6 months, reflecting the appropriate discount for the guilty plea. The Court noted that the re-sentence took into account the objective seriousness of the offence, the applicant's medical conditions, and the need for consistency with the sentence imposed on the co-offender. The Court also noted that the re-sentence was within the range of sentences typically imposed for similar offences. The applicant's appeal was thus resolved by the re-sentencing, which addressed the identified errors and ensured a fair and proportionate sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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