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El-Jaklh v The Queen

El-Jaklh v The Queen

Case [2011] NSWCCA 236 3 November 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: El-Jalkh v R [2011] NSWCCA 236
Hearing dates: 12 October 2011
Decision date: 03 November 2011
Jurisdiction: Common Law - Criminal
Before: McClellan CJ at CL at 1
Latham J at 2
Harrison J at 3
Decision:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentence imposed upon the applicant by Williams DCJ on 1 October 2010 and in lieu thereof sentence the applicant to a term of imprisonment of 10 years commencing on 24 November 2006 and expiring on 23 November 2016 with a non-parole period of 5 years and 3 months commencing on 24 November 2006 and expiring on 23 February 2012.

Catchwords: CRIMINAL LAW - appeal against sentence - whether applicant has justifiable sense of grievance for sentence imposed on co-offender - where applicant's medical condition taken into account when determining non-parole period - whether medical condition taken into account for overall term of imprisonment - whether new evidence of deterioration of medical condition means sentencing judge did not have full appreciation of the condition - whether sentencing discretion miscarried where prison authorities failed to make medical treatment available - whether error of commencement date of sentence - sentence adjusted and reduced by 1 month
Legislation Cited: Crimes (Administration of Sentences) Act 1999
Criminal Code Act 1995
Customs Act 1901
Cases Cited: Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68
El-Jalkh v R [2009] NSWCCA 139
Fisher v R [2008] NSWCCA 103
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v BEG [2001] NSWCCA 341
R v Keir [2004] NSWCCA 106
R v Munday (1981) 2 NSWLR 177
R v Szabo [2003] NSWCCA 431
R v Vachalec (1981) 1 NSWLR 351
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360
Withers v R [2009] NSWCCA 133
Category: Principal judgment
Parties: Antoine El-Jalkh (Applicant)
Crown (Respondent)
Representation: P Lange (Applicant)
R Sutherland SC (Crown)
Nyman Gibson Stewart (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2004/16157
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-10-01 00:00:00

Before:

Williams DCJ

File Number(s):

2004/16157

Judgment

McCLELLAN CJ at CL : I agree with the orders proposed by Harrison J and his reasons. I also agree with the remarks of Latham J.

LATHAM J : I agree with Harrison J. I would only add that, notwithstanding the applicant's asserted medical condition and putting to one side the need to grant leave to correct the error conceded by the Crown, I would have refused leave in this case. The criminality inherent in a conspiracy to import 4.3 kg of pure MDMA, instigated by the applicant, was incapable…

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-Jaklh v The Queen

Details

AGLC: El-Jaklh v The Queen [2011] NSWCCA 236
Case: [2011] NSWCCA 236
Decision Date: 03 November 2011

CaseChat Overview and Summary

The case of El-Jaklh v The Queen involved the appellant, who had appealed against the sentence imposed on him for his involvement in a criminal offence. The appellant had argued that the sentence was unjust, particularly in comparison to the sentence given to his co-offender. The central issue was whether the appellant had a justifiable sense of grievance due to the disparity in sentencing, particularly in light of his medical condition, which had been taken into account in determining his non-parole period. Additionally, the appellant contended that his medical condition had not been adequately considered in setting the overall term of his imprisonment and that new evidence of a deterioration in his health indicated the sentencing judge did not have a full appreciation of the condition. Furthermore, the appellant argued that the sentencing discretion had miscarried due to the prison authorities' failure to make medical treatment available. Lastly, the appellant claimed there was an error in the commencement date of his sentence.

The court considered the arguments presented by the appellant, focusing on the adequacy of the sentencing judge's consideration of the appellant's medical condition and whether this had affected the fairness of the sentence. The court noted that the sentencing judge had indeed taken the appellant's medical condition into account in determining the non-parole period, but had not fully considered the implications of the condition for the overall term of imprisonment. The court acknowledged that the appellant's medical condition had deteriorated since the sentencing hearing, but found that this did not necessarily mean the sentencing judge had not appreciated the full extent of the condition at the time of sentencing. Regarding the availability of medical treatment in prison, the court held that while this was a concern, it did not amount to a miscarriage of the sentencing discretion. The court also reviewed the evidence regarding the commencement date of the sentence and determined that there was an error, which warranted adjustment of the sentence.

In light of its findings, the court decided to reduce the appellant's sentence by one month to correct the error in the commencement date. The court concluded that while the appellant's medical condition was a significant factor, the overall sentence, including the non-parole period, was not manifestly inadequate. The court maintained that the sentencing judge had appropriately balanced the appellant's health issues with the need to impose a sentence that reflected the seriousness of the offence. The final order of the court was to reduce the appellant's sentence by one month, with no further alteration to the original sentence.

Orders