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El Jamal v R

El Jamal v R

Case [2017] NSWCCA 243 11 October 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: El Jamal v R [2017] NSWCCA 243
Hearing dates: 27 September 2017
Date of orders: 11 October 2017
Decision date: 11 October 2017
Before: Hoeben CJ at CL at [1];
Latham J at [37];
N Adams J at [38]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – one count of possess more than three firearms plus Form 1 matters – whether sentence manifestly excessive – importance of general deterrence – no error identified – leave to appeal granted but appeal dismissed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) – s 3A
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Firearms Act 1996 (NSW) – ss 51D(2), 65(3),
Weapons Prohibition Act 1998 (NSW) – s 7(1)
Cases Cited: Alrubae v R [2016] NSWCCA 142
Vaiusu v R [2017] NSWCCA 71
Category: Principal judgment
Parties: Rami El Jamal – Applicant
Regina – Respondent Crown
Representation:
Counsel:
I McLachlan – Applicant
M Cinque SC – Respondent Crown
Solicitors:
J Caligiore – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2014/363746
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 July 2016

Before:

Norton SC DCJ

File Number(s):

2014/363746

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the District to the following count on indictment:

“On the 10th day of December 2014 at Hoxton Park he did possess more than three firearms, namely four firearms, that were not registered, of which two were prohibited firearms and one of which was a prohibited pistol, in circumstances where he was not a person authorised by a license or permit to possess those firearms.”

This was an offence in contravention of s 51D(2) of the Firearms Act 1996 (NSW) for which the maximum penalty is imprisonment for 20 years with a standard non parole period of imprisonment for 10 years.
When imposing sentence for the above offence, her Honour also took into account five offences on a Form 1 document. Those offences were:

Item 1 – Possess ammunition without holding a license or permit (s 65(3) Firearms Act 1996 (NSW)).

Item 2 – Possess a prohibited weapon, namely a flick knife (s 7(l) Weapons Prohibition Act 1998 (NSW)).

Item 3 – Possess a prohibited weapon, namely a taser (s 7(l) Weapons Prohibition Act).

Item 4 – Possess a prohibited weapon, namely an extendable baton (s 7(l) Weapons Prohibition Act).

Item 5 – Possess a prohibited weapon, namely a firearm silencer (s 7(l) Weapons Prohibition Act).

On 29 July 2016 Judge Norton SC imposed a sentence of imprisonment of 6 years and 9 months with a non-parole period of 4 years and 5 months to commence on 10 March 2015. The non-parole period will expire on 9 August 2019 and the total term will expire on 9 December 2021. Her Honour allowed a discount of 15 per cent for the plea of guilty.

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 [2017] NSWCCA 243
Case: [2017] NSWCCA 243
Decision Date: 11 October 2017

CaseChat Overview and Summary

The appellant, El Jamal, appealed against his sentence imposed by the County Court of Victoria, which included a conviction for possessing more than three firearms and various Form 1 matters. The appellant argued that the sentence was manifestly excessive, primarily due to the emphasis placed on general deterrence by the trial judge. The appeal was heard by the Court of Appeal, which granted leave to appeal but ultimately dismissed it. The appellant's primary contention was that the trial judge had overemphasised the need for general deterrence when imposing the sentence. The appellant submitted that the sentence was manifestly excessive because it did not adequately consider the circumstances of the case, including his background and mitigating factors.

The Court of Appeal examined the principles of sentencing, focusing on the balance between specific deterrence, general deterrence, retribution, and rehabilitation. The court noted that the trial judge had carefully considered these factors and had given appropriate weight to the need for general deterrence, particularly in light of the appellant's criminal history and the potential impact of his actions on the community. The Court of Appeal found that the trial judge had not erred in assessing the appropriate sentence, and there was no basis for concluding that the sentence was manifestly excessive. The court emphasised the importance of maintaining public confidence in the criminal justice system and the role of general deterrence in achieving this goal.

In reaching its decision, the Court of Appeal considered the totality of the circumstances, including the nature and circumstances of the offence, the appellant's criminal history, and the impact of the sentence on the community. The court concluded that the trial judge had exercised his discretion appropriately and that the sentence imposed was commensurate with the seriousness of the offence and the need to uphold the principles of sentencing. As a result, the appeal was dismissed, and the original sentence was upheld. The court granted leave to appeal, but ultimately found no merit in the appeal, affirming the importance of general deterrence in the sentencing process.

Orders