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El Kheir v R

El Kheir v R

Case [2019] NSWCCA 288 9 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: El Kheir v R [2019] NSWCCA 288
Hearing dates: 13 November 2019
Decision date: 09 December 2019
Before: Hoeben CJ at CL at [1];
Leeming JA at [2];
Lonergan J at [57]
Decision:
1. To the extent necessary, extend the time within which to file a notice of appeal until 31 July 2019.
2. Grant leave to appeal.
3. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – parity – two offenders manufactured large commercial quantity of methylamphetamine – applicant found guilty and sentenced on basis of manufacturing some 2.6 kg of the drug – co-offender pleaded guilty to manufacturing 12.84 kg of the drug – section 4 of Drug Misuse and Trafficking Act 1985 (NSW) provided that references to a prohibited drug included reference to any admixture containing any proportion of the drug – offenders charged on different bases but sentenced on basis that both had manufactured the same mixture from which 2.6 kg of methylamphetamine could be extracted – no error in having regard to purity of admixture – no justifiable sense of grievance by applicant when all relevant facts considered – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33, 53A
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 24, 24A, 33
Firearms Act 1996 (NSW), ss 7, 7A
Poisons Act 1952 (NSW), s 3
Poisons and Therapeutic Goods Act 1966 (NSW), s 3
Police Offences Amendment (Drugs) Act 1927 (NSW), ss 18, 19, 20
Cases Cited: Finch v R [2016] NSWCCA 133
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lam v R; Lam v R [2015] NSWCCA 87
Lloyd v R [2017] NSWCCA 303
Lowe v The Queen (1984) 154 CLR 606
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Melikian v R [2008] NSWCCA 156
Nguyen v R [2019] NSWCCA 213
Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104
R v James [2017] NSWCCA 287
Roberts (a Pseudonym) v R [2019] NSWCCA 102
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; 247 A Crim R 272
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Woods v R [2017] NSWCCA 5
Yacoub v R [2019] NSWCCA 47
Texts Cited: R Hickey, “Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title” (2003) 66 Modern Law Review 368
Category: Principal judgment
Parties: Fredi El Kheir (Applicant)
Crown (Respondent)
Representation:
Counsel:
G James QC (Applicant)
D Patch (Respondent)
Solicitors:
One Group Legal Pty Ltd (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/28736
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 May 2018

Before:

Her Honour Judge O’Rourke SC DCJ

File Number(s):

2016/28736

Judgment

HOEBEN CJ at CL: I agree with Leeming JA and the orders…

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 Kheir v R

Details

AGLC: El Kheir v The Queen [2019] NSWCCA 288
Case: [2019] NSWCCA 288
Decision Date: 09 December 2019

CaseChat Overview and Summary

The case of El Kheir v R involved the applicant, who was found guilty of manufacturing a large commercial quantity of methylamphetamine, and the respondent, the Crown. The applicant was sentenced based on his involvement in the manufacture of 2.6 kg of the drug. His co-offender, who pleaded guilty to manufacturing 12.84 kg of the drug, was also involved in the same criminal activity. The dispute centred around the fairness of the sentence given to the applicant in comparison to his co-offender. The court was tasked with determining whether the applicant's sentence was proportionate and whether the consideration of the purity of the admixture was appropriate.

The primary legal issue before the court was whether the applicant's sentence was disproportionate to that of his co-offender, given the different bases on which they were charged and sentenced. The court had to consider whether it was appropriate to take into account the purity of the admixture in determining the quantity of the drug manufactured by the applicant. Furthermore, the court examined whether the applicant had a justifiable sense of grievance in the context of the overall circumstances of the case.

The court concluded that there was no error in considering the purity of the admixture in sentencing the applicant, as both offenders were involved in the same manufacturing process. The court found that when all relevant facts were taken into account, including the involvement of both offenders in the same criminal activity and the proportionality of their sentences, there was no justifiable sense of grievance by the applicant. The appeal was dismissed, affirming that the sentence was fair and appropriate given the circumstances.

The final orders of the court were that the appeal by the applicant against his sentence was dismissed, and the original sentence stood. The court upheld the decision of the lower court, confirming that the sentence imposed on the applicant was just and proportionate to the crime committed.

Orders