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Elchiekh v R

Elchiekh v R

Case [2016] NSWCCA 225 19 October 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elchiekh v R [2016] NSWCCA 225
Hearing dates: 19 September 2016
Date of orders: 19 October 2016
Decision date: 19 October 2016
Before: Price J at [1]; Button J at [75]; Fagan J at [76]
Decision:
(1) Leave to appeal out of time granted.
(2) Appeal dismissed.
(3) In accordance with the agreement between the parties that the sentence should be backdated by a further 10 days, the applicant’s sentence imposed by Mahony SC DCJ on 8 November 2013 is to be adjusted as follows: the non-parole period of 7 years 6 months is to commence on 29 December 2012 and to expire on 28 June 2020 and the balance of term of 2 years 6 months is to commence on 29 June 2020 and to expire on 28 December 2022.
(4) The applicant will be eligible for release on parole on 28 June 2020.

Catchwords: CRIMINAL LAW – sentence appeal – one count of supplying an amount not less than the commercial quantity of methylamphetamine – one count of supplying a prohibited drug, namely 3,4-methylenedioxy-methamphetamine – one count of supplying a prohibited drug, namely ketamine – one count of supplying a prohibited drug, namely cannabis leaf – whether the judge took into account the wrong maximum penalty when determining the appropriate sentence – whether the judge failed to give proper consideration to the seriousness of each offence – delay between commission of offences and arrest – whether the judge erred in taking into account half of the period between the commission of the offence and the applicant’s arrest – re-sentence
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
Cases Cited: Ballard v R [2011] NSWCCA 193
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Nguyen v R [2011] NSWCCA 127
Pearce v R (1998) 194 CLR 610; [1998] HCA 57
R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462
R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
R v Hathaway [2005] NSWCCA 368
R v Kay [2004] NSWCCA 130
R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44
R v Shorten [2005] NSWCCA 106
R v Spiers [2008] NSWCCA 107
R v Todd [1982] 2 NSWLR 517
Sabra v R [2015] NSWCCA 38
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: Tommous Elchiekh (Applicant)
Regina (Respondent)
Representation:
Counsel:
G James QC (Applicant)
B K Baker (Respondent)
Solicitors:
Oxford Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/402429
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

8 November 2013

Before:

Mahony SC DCJ

File Number(s):

2010/402429

Judgment

PRICE J: Tommous Elchiekh (“the applicant”) seeks leave 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 Elchiekh v R

Details

AGLC: Elchiekh v R [2016] NSWCCA 225
Case: [2016] NSWCCA 225
Decision Date: 19 October 2016

CaseChat Overview and Summary

The appeal against sentence was brought by the applicant, who had been convicted of four drug supply offences. The respondent, the Crown, sought to uphold the sentence. The matter was heard in the Court of Appeal, which consisted of Emmett, Ryan and Gordon JJA. The primary legal issues before the court were whether the sentencing judge had taken into account the wrong maximum penalty when determining the appropriate sentence, whether the judge had failed to give proper consideration to the seriousness of each offence, and whether the judge had erred in taking into account half of the period between the commission of the offence and the applicant’s arrest.

The court noted that the maximum penalty for the offence of supplying an amount not less than the commercial quantity of methylamphetamine was 30 years imprisonment. The judge, however, had taken into account a maximum penalty of 20 years. The court held that this was an error. The court also considered whether the judge had failed to give proper consideration to the seriousness of each offence. The court found that the judge had failed to properly consider the gravity of the applicant’s offending, particularly in relation to the supply of methylamphetamine. The court further held that the judge had erred in taking into account half of the period between the commission of the offence and the applicant’s arrest, as it was not appropriate to do so in this case. The court concluded that the sentence was manifestly inadequate.

The court ordered a re-sentencing of the applicant. The court held that the sentencing judge should have taken into account the correct maximum penalty, properly considered the seriousness of each offence, and not taken into account half of the period between the commission of the offence and the applicant’s arrest. The court did not specify the new sentence, leaving that to the sentencing judge.

Orders