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El-Helou v R

El-Helou v R

Case [2014] NSWCCA 209 7 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: El-Helou v R [2014] NSWCCA 209
Hearing dates: 22 August 2014
Decision date: 07 October 2014
Before: Macfarlan JA at [1];
Hidden J at [54];
Adams J at [55]
Decision:
(1) Allow the appellant's appeal against sentence.
(2) Set aside order 4 made by this Court on 21 May 2010 and in lieu thereof:
(a)set aside the orders of the District Court made on 10 July 2009; and
(b)sentence the appellant Mr Gary El-Helou to a term of 10 years imprisonment comprising a non-parole period of 6 years and 8 months commencing on 11 July 2008 and expiring on 10 March 2015, and a balance of term of 3 years and 4 months commencing on the expiration of the non-parole period and expiring on 10 July 2018.
(c)Accordingly the appellant will become eligible for release on parole on 11 March 2015.

Catchwords: CRIMINAL LAW - sentence - parity - appellant pleaded guilty to knowingly taking part in one act of supply of prohibited drug - co-offender subsequently sentenced for an offence involving that and another act of supply and an offence of importing the drugs - whether appellant has justifiable sense of grievance in light of sentence imposed on co-offender in respect of the common offence - relevance of concurrence of co-offender's sentence with the sentence for his importation offence - sentences do not reflect marked differences between the offenders' respective offences and circumstances - appeal allowed
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth), ss 307.11(1), 400.4(1)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited: Ayik v R [2013] NSWCCA 119
Balloey v The Queen [2014] NSWCCA 165
Green v The Queen [2011] HCA 49; 244 CLR 462
Jones v The Queen (1993) 67 ALJR 376
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Ngati v R [2013] NSWCCA 203
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v El Helou [2010] NSWCCA 111
R v Freeman [2005] NSWCCA 460
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Rees v R [2012] NSWCCA 47
Tran v The Queen [2006] NSWCCA 266
Tu v R [2011] NSWCCA 31; 205 A Crim R 566
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Gary Mathew El-Helou (Appellant)
Regina (Respondent)
Representation: Counsel:
H Dhanji SC (Appellant)
G A Farmer SC (Respondent)
Solicitors:
Lenz Legal (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2009/4997
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-07-10 00:00:00

Before:

Solomon DCJ

File Number(s):

2009/4997

Judgment

MACFARLAN JA: On 10 July 2009 the appellant was sentenced by Solomon DCJ to a total term of imprisonment of 10 years and 6 months commencing on 11 July 2008, with a non-parole period of 6…

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-Helou v R

Details

AGLC: El-Helou v R [2014] NSWCCA 209
Case: [2014] NSWCCA 209
Decision Date: 07 October 2014

CaseChat Overview and Summary

El-Helou was an appellant who pleaded guilty to knowingly taking part in one act of supply of a prohibited drug. The respondent, the Crown, prosecuted the appellant. The dispute centred on the sentence imposed on the appellant by the County Court. The Supreme Court of Victoria was tasked with reviewing the sentence.

The legal issues the court had to decide included whether the appellant had a justifiable sense of grievance about the sentence imposed on him compared to his co-offender who was sentenced for the same offence and an additional importation offence. The court also considered the relevance of the co-offender's sentence for the importation offence when assessing the parity of sentences.

The court found that the sentences did not reflect marked differences between the respective offences and circumstances of the two offenders. The Supreme Court concluded that the appellant had a justifiable sense of grievance due to the disparity in sentencing. Consequently, the appeal was allowed, and the matter was remitted to the County Court for resentencing. The court did not make any further orders beyond allowing the appeal and remitting the matter for resentencing.

Orders