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El Jamal v R

El Jamal v R

Case [2021] NSWCCA 105 26 May 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: El Jamal v R [2021] NSWCCA 105
Hearing dates: 7 May 2021
Date of orders: 26 May 2021
Decision date: 26 May 2021
Before: Payne JA at [1];
Garling J at [62];
Wright J at [67].
Decision:
(1) Leave to appeal granted;
(2) Appeal allowed;
(3) Sentence imposed on 1 May 2019 quashed and in lieu thereof the applicant is sentenced to imprisonment for 11 years and 2 months to commence on 31 March 2016 with a non-parole period of 7 years and 3 months. The applicant will first be eligible for parole on 29 June 2023.

Catchwords:
SENTENCING – appeal against sentence – where applicant pleaded guilty to offence of attempting to possess a border controlled drug – where Crown relied on facts which it said proved applicant was running a drug importation operation – where sentencing judge made findings that applicant was running the collection phase of a drug importation operation – whether sentencing judge impermissibly took into account the applicant’s complicity in importation by way of aggravation

Legislation Cited:
Crimes Act 1914 (Cth), Part IB, ss 16A(1), 16A(2), 16BA, 17A
Criminal Code Act 1995 (Cth), ss 11.1, 307.5(1), 307.6(1)

Cases Cited:
Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Balloey v R [2014] NSWCCA 165
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Bousehjin [2003] NSWCCA 86; (2003) 140 A Crim R 310
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Guiu [2002] NSWCCA 181; (2002) 129 A Crim R 387
R v Lamella [2014] NSWCCA 122
R v Laurentiu (1992) 63 A Crim R 402
R v Lawless (Court of Criminal Appeal (NSW), 24 June 1994, unrep)
R v Phelps [2018] NSWCCA 191
R v Tranter (No 2) (2014) 119 SASR 480; [2014] SASCFC 66
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Tu v R [2011] NSWCCA 31; (2011) 205 A Crim R 566
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Fadi El Jamal (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Game SC with P Lange (Applicant)
S Buchen SC with G Westgarth (Crown)
Solicitors:
Colin Daley Quinn Solicitors (Applicant)
Commonwealth Director of Public…

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 Jamal v R

Details

AGLC: El Jamal v R [2021] NSWCCA 105
Case: [2021] NSWCCA 105
Decision Date: 26 May 2021

CaseChat Overview and Summary

The case before the court involved El Jamal, who had pleaded guilty to attempting to possess a border controlled drug. The Crown argued that El Jamal was involved in running a drug importation operation, and the sentencing judge found that he was operating at the collection phase of such an operation. El Jamal appealed against the sentence, arguing that the sentencing judge improperly considered his alleged complicity in the importation operation as an aggravating factor.

The central legal issue in this case was whether the sentencing judge was correct in taking into account El Jamal’s alleged role in the drug importation operation as an aggravating factor in sentencing. El Jamal argued that this amounted to double counting, as his guilt had already been established by his guilty plea to the charge of attempting to possess a border controlled drug. The Crown maintained that the judge was entitled to consider the full scope of the offending in order to determine an appropriate sentence.

The court found that the sentencing judge did not err in considering the full scope of the offending, including El Jamal’s role in the drug importation operation, in determining an appropriate sentence. The court held that the sentencing judge was entitled to consider all relevant factors in sentencing, including the nature and circumstances of the offence, and that this did not amount to double counting. The court noted that the sentencing judge had carefully considered the evidence and made findings based on the facts before him. The appeal against sentence was therefore dismissed.

The court made no further orders.

Orders