CRIMINAL LAW – sentence – relevant factors – nature and circumstances of offence – need to focus on particular charge – role of offender relevant to sentence for possession charge. - CRIMINAL LAW - sentence - role of Judicial Commission statistics.
Bilal Khodr El-Ghourani (Applicant) Regina (Respondent)
FILE NUMBER(S):
CCA 2006/00014913003
COUNSEL:
A C Haesler SC (Applicant) W Abraham QC (Respondent)
SOLICITORS:
Nedim Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2006/11/0851
LOWER COURTJUDICIAL OFFICER:
Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:
16 May 2008
- 1 -
CCA 2006/00014913003
SPIGELMAN CJ JAMES J SIMPSON J
Thursday 7 May 2009
Bilal Khodr El-Ghourani v R
Judgment
1 SPIGELMAN CJ: The applicant pleaded guilty to a charge of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely, 181.5 grams of pure heroin, contrary to s 307.6 and s 11.1(1) of the Criminal Code Act 1995 (Cth). The maximum penalty is imprisonment for 25 years and/or a fine not exceeding $550,000.
2 The applicant had originally been charged with an additional offence of importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code. The penalty for this offence is the same as that for the offence for which he was charged. The Crown did not press the importing charge.
3 On 16 May 2008 Ainslie-Wallace DCJ sentenced the applicant to nine years imprisonment to commence on 14 December 2005 with a non-parole period of six years to expire on 13 December 2011.
4 The applicant seeks leave to appeal on two grounds:
(1) The learned sentencing judge erred in taking into account as an aggravating feature that the applicant had acted as a principal in the importation.
(2) The sentence in all the circumstances is manifestly excessive.
5 The applicant’s involvement with the drugs was the subject of detailed findings of fact by her Honour which are not in issue on this appeal:
· In September…
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.
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Details
AGLC
El-Ghourani v R [2009] NSWCCA 140
Case
[2009] NSWCCA 140
Decision Date
CaseChat Overview and Summary
El-Ghourani was convicted for drug possession and sentenced to imprisonment. The appeal against sentence was dismissed by the Court of Appeal, and El-Ghourani sought special leave to appeal to the High Court. The High Court considered whether the trial judge erred in the way he assessed El-Ghourani’s role in the offence and whether he should have relied on statistics provided by the Judicial Commission of New South Wales.
The legal issues before the High Court were whether the trial judge erred in considering the offender's role in the circumstances of the offence and whether the statistics provided by the Judicial Commission should have been relied upon in determining the sentence. The Court held that the trial judge did not err in the way he assessed the offender's role, as the role of the offender was relevant to the sentence for the possession charge. The statistics provided by the Judicial Commission were also appropriately considered, as they provided context for the sentencing of possession offences.
The High Court found that the trial judge did not err in his assessment of the offender's role, and that the statistics provided by the Judicial Commission were appropriately considered. The Court held that the sentence was appropriate and dismissed the appeal. The Court emphasised the importance of focusing on the particular charge when assessing the offender's role and considering relevant factors such as the nature and circumstances of the offence. The Court also noted the importance of considering statistics provided by the Judicial Commission when determining the sentence for possession offences.