Legal Research
Cases
El-Ahmad v R

El-Ahmad v R

Case [2015] NSWCCA 65 16 April 2015

Appeal

Sentencing

Discount for Guilty Plea

Miscarriage of Sentencing Discretion

Criminal Law

No judgment structure available for this case.

Type to search within this case.

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-sentence
Legislation 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 225
Category: Principal judgment
Parties: Mouna El-Ahmad (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr W Hunt (Applicant)
Ms J Girdham SC (Crown)
Solicitors:
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

BEAZLEY P: I agree with R A Hulme J.
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.
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…

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 El-Ahmad v R

Details

AGLC: El-Ahmad v R [2015] NSWCCA 65
Case: [2015] NSWCCA 65
Decision Date: 16 April 2015

CaseChat Overview and Summary

The applicant, El-Ahmad, appealed against the sentence imposed by the County Court for his involvement in the commercial supply and ongoing supply of a commercial quantity of a prohibited drug. The applicant had a lengthy criminal history, including convictions for drug-related offences. He was diagnosed with Crohn’s disease and had a history of drug-induced psychosis. The trial judge assessed the objective seriousness of the offence at below the mid-range and imposed a sentence that included a non-parole period of 12 years. El-Ahmad argued that the trial judge erred in the assessment of the objective seriousness, failed to adequately consider his medical conditions, and miscarried the sentencing discretion by imposing a sentence that was significantly harsher than that given to his co-offender. The Crown accepted that there was an error in the assessment of objective seriousness but argued that the sentence was not excessive and that the discount for the guilty plea should be reconsidered.

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