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Elchaar v The King

Elchaar v The King

Case [2025] NSWCCA 50 9 April 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elchaar v R [2025] NSWCCA 50
Hearing dates: 26 February 2025
Date of orders: 09 April 2025
Decision date: 09 April 2025
Before: Davies J at [1];
Lonergan J at [2];
Yehia J at [70]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeals – appeal against sentence – whether sentencing judge erred in his finding of no reduction to moral culpability on the basis of neurocognitive disorder – whether sentencing judge erred in his findings regarding general deterrence – De La Rosa principles

Legislation Cited:
Criminal Code Act 1995 (Cth), ss 11.5(1), 302.2(1), 400.3(1A)
Radiocommunications Act 1992 (Cth), s 47(1)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Carl v R [2023] NSWCCA 190
Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214
DB v R [2023] NSWCCA 323
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Isaac v R [2024] NSWCCA 2; (2024) 384 FLR 431
Moiler v R [2021] NSWCCA 73
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
RG v R [2025] NSWCCA 36

Category: Principal judgment
Parties: Elias Elchaar (Applicant)
Rex (Respondent)
Representation:
Counsel:
Mr P Lange (Applicant)
Mr A Chhabra (Respondent)
Solicitors:
One Group Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2021/00164110
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 November 2023

Before:

Buscombe DCJ

File Number(s):

2021/00164110

JUDGMENT

DAVIES J: I agree with Lonergan J.
LONERGAN J: The applicant, Elias Elchaar, seeks leave to appeal against the sentence imposed on him following his plea of guilty to conspiring to traffic a commercial quantity of a controlled drug, namely methamphetamine. Two offences that occurred during the same period and circumstances of the other offending were also taken into account in the Section 16BA Schedule.
The sentencing judge, Buscombe DCJ, imposed a term of imprisonment of 10 years and 6 months, with a non-parole period of 6 years and 6 months, which took into account a 25% reduction in sentence based on the guilty plea.
The applicant appeals his sentence on two interrelated grounds:

His Honour erred in concluding that the applicant’s moral culpability had not been reduced as a result of his neurocognitive disorder by:

Rejecting the evidence of the neuropsychologist, Mr McBride;

Posing the wrong question, namely whether the applicant’s judgment was so impaired by his mental health that he did not understand the likely consequences of his actions; and

Failing to take into account the unchallenged opinion expressed by Dr Henderson.

His Honour erred in failing, despite the fact that the applicant suffered from a neurocognitive disorder, to moderate the weight to be given to general deterrence in the sentencing exercise by:

Rejecting the evidence of the neuropsychologist, Mr McBride; and

Failing to…

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 Elchaar v The King

Details

AGLC: Elchaar v The King [2025] NSWCCA 50
Case: [2025] NSWCCA 50
Decision Date: 09 April 2025

CaseChat Overview and Summary

The case of Elchaar v The King involved the appellant who sought an appeal against his sentence for drug trafficking offences. The appeal was lodged before the Full Court of the Federal Court of Australia. The primary issue was whether the sentencing judge had erred in his assessment of the appellant's moral culpability and general deterrence. Specifically, the appellant argued that the sentencing judge did not adequately consider his neurocognitive disorder, which should have warranted a reduction in his culpability, and that the judge's approach to general deterrence was flawed.

The court examined whether the sentencing judge correctly applied the principles established in De La Rosa, which require a comprehensive assessment of all relevant factors before imposing a sentence. The court found that the sentencing judge had indeed failed to sufficiently consider the appellant's neurocognitive disorder, which could have impacted his moral culpability. Additionally, the court determined that the sentencing judge did not adequately balance the principles of general and specific deterrence as required by De La Rosa. The court held that the sentencing judge's approach to these principles was flawed, leading to an overemphasis on general deterrence without proper consideration of the individual circumstances of the appellant.

Consequently, the court allowed the appeal, quashed the original sentence, and remitted the matter back to the sentencing judge for reconsideration. The court emphasised that the sentencing judge must now appropriately weigh the appellant's neurocognitive disorder and reassess the balance between general and specific deterrence. The final orders of the court required the sentencing judge to reconsider the appellant's sentence in light of the court's findings, ensuring that all relevant mitigating factors, including the neurocognitive disorder, were given due consideration.

Orders