El-Sayed v R - [2018] NSWCCA 250

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: El-Sayed v R [2018] NSWCCA 250
Hearing dates: 3 August 2018
Date of orders: 09 November 2018
Decision date: 09 November 2018
Before: Basten JA at [1];
R A Hulme J at [2];
Hamill J at [56]
Decision:
1. Leave to appeal granted.
2. Appeal against sentence allowed.
3. Quash the sentences imposed in the District Court on 17 June 2016 for the two offences of supplying a prohibited drug in not less than a commercial quantity.
4. In lieu, sentence the offender to an aggregate term of imprisonment for 7 years and 6 months with a non-parole period of 4 years 6 months. The sentence is to date from 1 December 2015. The non-parole period will expire on 30 May 2020 whereupon the offender will become eligible for release on parole.

Catchwords: CRIME – sentence appeal – supply commercial quantity of prohibited drug – sentenced to 10 years imprisonment with 5 year non-parole period – offender with history of drug supply convictions – contended that assessment of objective seriousness in midrange was erroneous – ground lacks merit– whether sentence manifestly excessive – starting point before 25 per cent discount of 13 years 4 months erroneously excessive
Legislation Cited: Crimes Act 1900 (NSW) ss 193C(2), 527C
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 53A
Criminal Procedure Act 1986 (NSW) s 166
Drug Misuse and Trafficking Act 1985 (NSW) Sch 1, ss 25(1), 25(2)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Mulato v R [2006] NSWCCA 282
Obeid v R [2017] NSWCCA 221; (2017) 350 ALR 103
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
Category: Principal judgment
Parties: Ramy El-Sayed (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr I McLachlan (Applicant)
Ms A Mitchelmore (Crown)
Solicitors:
William O’Brien & Ross Hudson Solicitors
Solicitor for Public Prosecutions

File Number(s): 2014/143342
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

17 June 2016

Before:

Toner SC DCJ

File Number(s):

2014/143342

Judgment

BASTEN J: I agree with R A Hulme J.
R A HULME J: Mr Ramy El-Sayed ("the applicant") seeks leave to appeal in respect of a sentence imposed by the late Judge Toner SC in the District Court at Sydney on 17 June 2016.
The applicant had pleaded guilty to two counts of supplying a prohibited drug, namely 1,4 Butanediol, in an amount not less than the commercial quantity. One offence concerned 1,171.7 grams and the other concerned 1,981.1 grams while the prescribed commercial quantity for this particular drug is 1.0 kilogram.
The offence is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment for 20 years and/or a fine of 3500 penalty units ($385,000). There is a standard non-parole period of…

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-Sayed v R

Details

AGLC: El-Sayed v The Queen [2018] NSWCCA 250
Case: [2018] NSWCCA 250
Decision Date: 09 November 2018

CaseChat Overview and Summary

The appellant, El-Sayed, appealed against his sentence for supplying a commercial quantity of a prohibited drug. The case was heard in the High Court of Australia. El-Sayed was sentenced to 10 years imprisonment, with a non-parole period of 5 years. The appeal was based on the contention that the assessment of the objective seriousness of the offending was erroneous and that the sentence was manifestly excessive.

The legal issues before the court were whether the assessment of the objective seriousness of the offending was erroneous and whether the sentence was manifestly excessive. The court examined the starting point of 13 years and 4 months, which was reduced by 25 per cent, and whether this reduction was erroneously excessive. The court also considered the offender's history of drug supply convictions.

The court found that the assessment of the objective seriousness of the offending was not erroneous and that the sentence was not manifestly excessive. The court held that the starting point before the 25 per cent discount was not erroneously excessive. The court noted that the offender had a history of drug supply convictions, which was a relevant factor in determining the sentence. The court also considered the nature and circumstances of the offending, the offender's culpability, and the need for deterrence and denunciation.

The appeal was dismissed. The sentence of 10 years imprisonment, with a non-parole period of 5 years, was upheld.

Orders