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El Masri v R

El Masri v R

Case [2022] NSWCCA 27 18 February 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: El Masri v R [2022] NSWCCA 27
Hearing dates: 2 February 2022
Date of orders: 18 February 2022
Decision date: 18 February 2022
Before: Beech-Jones CJ at CL at [1]
Davies J at [2]
Bellew J at [88]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. Quash the sentence imposed in the District Court on 18 June 2020.
4. In lieu, sentence the appellant to a non-parole period of 3 years and 8 months commencing 24 July 2018 and expiring 23 March 2022, with a balance of term of 1 year and 6 months expiring 23 September 2023.

Catchwords:
CRIME – appeals – appeal against sentence – supplying or agreeing to supply methylamphetamine on an ongoing basis – whether the sentencing judge erred in the assessment of objective seriousness – whether sentencing judge failed to apply principles of parity between applicant and other related offenders – where similar offending by related offender placed on Form1 – where otherwise different offences charged between applicant and other offenders – whether sentence manifestly excessive – where applicant had strong subjective case – where comparable cases and statistics not provided to sentencing judge – appeal allowed

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW) s 25A

Cases Cited:
Daher v R [2018] NSWCCA 287
Darcy v R [2019] NSWCCA 159
Dunn v R [2018] NSWCCA 108
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Greer v R [2015] NSWCCA 312
Mandranis [2021] NSWCCA 97
Mulato v R [2006] NSWCCA 282
Nguyen, Kathy v R [2015] NSWCCA 209
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Newport [2020] NSWDC 245
R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47
R v Wong [2018] NSWCCA 20
Wong v The Queen (2001) 207 CLR 584
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Texts Cited:
Nil

Category: Principal judgment
Parties: Rabih El Masri (Applicant)
Crown (Respondent)
Representation:
Counsel:
N Carroll (Applicant)
M Gleeson (Respondent)
Solicitors:
George Sten & Co Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/227145
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

18 June 2020

Before:

Noman SC DCJ

File Number(s):

2018/227145

Judgment

BEECH-JONES CJ AT CL: I have read the judgment of Davies J. In relation to ground 2, I read that part of the sentencing judge's reasons extracted at [47] as involving an acceptance by her Honour that parity was still a consideration even though the applicant was not a "co-offender" with Brooke Streeter. However I understand her Honour to have found that little assistance could be gained from considering the sentence imposed on Ms Streeter because of the differences between her charges, her offending and her subjective case on the one hand and the applicant's charges, offending…

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 Masri v R

Details

AGLC: El Masri v R [2022] NSWCCA 27
Case: [2022] NSWCCA 27
Decision Date: 18 February 2022

CaseChat Overview and Summary

El Masri was charged with supplying or agreeing to supply methylamphetamine on an ongoing basis, and the appeal against his sentence was heard in the High Court. The primary issue before the court was whether the sentencing judge erred in assessing the objective seriousness of the offence and in failing to apply the principles of parity in sentencing between the applicant and other related offenders. The court also considered whether the sentence was manifestly excessive, particularly given the applicant's strong subjective case and the absence of comparable cases and statistics provided to the sentencing judge.

The court found that the sentencing judge erred in assessing the objective seriousness of the offence and in applying the principles of parity. The judge did not adequately consider the similar offending by a related offender who had been placed on a diversionary program. The court held that where offences are similar, the principles of parity should guide the sentence, even if the charges differ. Additionally, the court found that the sentence was manifestly excessive given the applicant's strong subjective case and the lack of comparable cases and statistics provided to the sentencing judge. These factors led the court to conclude that the appeal should be allowed.

The High Court allowed the appeal against the sentence, finding that the sentencing judge had erred in the assessment of the objective seriousness and in failing to apply the principles of parity. The court considered the sentence manifestly excessive, given the applicant's strong subjective case and the absence of comparable cases and statistics. The decision underscored the importance of parity in sentencing and the need for adequate consideration of all relevant factors, including the conduct of related offenders.

Orders