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Elhassan v R

Elhassan v R

Case [2018] NSWCCA 118 13 June 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elhassan v R [2018] NSWCCA 118
Hearing dates: 13 April 2018
Decision date: 13 June 2018
Before: Simpson AJA at [1];
Fullerton J at [2];
McCallum J at [3]
Decision:
Sentence imposed by Syme DCJ quashed and, in substitution therefor, applicant sentenced to a term of imprisonment with a non-parole period of six years commencing on 29 October 2016 and a balance of term of three years.

Catchwords: CRIME – sentence – where error on the part of the sentencing judge is conceded by the Crown –contention by Crown that “no lesser sentence is warranted in law” – how apt to mislead – obligation of appellate court to exercise its own sentencing discretion independently of the sentence selected at first instance
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 44(2)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited: Davis v R [2015] NSWCCA 90
Elsaj v R [2017] NSWCCA 124
Hillier v DPP (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Fidow [2004] NSWCCA 172
R v Jones (Unreported, NSW Court of Criminal Appeal, 30 June 1994)
R v Kaliti [2001] NSWCCA 268
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
Smith v R [2011] NSWCCA 163
Trejos v R [2017] NSWCCA 122
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Yeung v R [2018] NSWCCA 52
Yousif v R [2014] NSWCCA 180
Category: Principal judgment
Parties: Mouraf El Hassan (Appellant)
Regina (Respondent)
Representation:
Counsel:
D Barrow (Appellant)
H Roberts (Respondent)
Solicitors:
Watsons Solicitors (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/190406
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Crime

Date of Decision:

13 April 2017

Before:

Syme DCJ

File Number(s):

2014/190406

Judgment

SIMPSON AJA: I agree with McCallum J.
FULLERTON J: I agree with McCallum J.
McCALLUM J: Mouraf Elhassan seeks leave to appeal against the sentence imposed upon him after he was found guilty by a jury of an offence of supplying not less than the commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The commercial quantity for cocaine is 250 grams. The amount the subject of the charge against the applicant was 278 grams.
The offence carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years. The applicant was sentenced to a term of imprisonment with a non-parole period of 7 years and 1 month and a balance of term of 2 years and 5 months, giving a total sentence of 9 years and 6 months commencing on 29 October 2016.
The indictment on which the applicant was arraigned included a second count of dealing with the proceeds of crime but the applicant was…

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 Elhassan v R

Details

AGLC: Elhassan v R [2018] NSWCCA 118
Case: [2018] NSWCCA 118
Decision Date: 13 June 2018

CaseChat Overview and Summary

In the case of Elhassan v R, the appellant, Elhassan, was convicted of several criminal offences and the matter came before the High Court of Australia. The central issue in the appeal was whether the sentence imposed by the sentencing judge was appropriate in light of the circumstances of the case and whether the appellant’s sentence was excessive given the concession by the Crown that there was an error in the sentencing process. The court was required to consider the obligation of the appellate court to exercise its own sentencing discretion independently of the sentence selected at first instance, particularly in light of the Crown’s concession that no lesser sentence was warranted in law.

The High Court examined the nature of the errors made by the sentencing judge and the extent to which they affected the overall sentence. The court recognised that the Crown's concession that no lesser sentence was warranted could potentially mislead the court, as it might imply that the appellate court was bound by the initial sentencing decision. However, the court emphasised that the appellate court has a duty to independently assess the appropriateness of the sentence, taking into account all relevant factors, including any errors made by the sentencing judge. The court found that the concession did not absolve the appellate court of its obligation to exercise its own discretion and ensure that the sentence was just and appropriate.

The High Court concluded that the concession by the Crown did not bind the appellate court to the initial sentence. Instead, the court was required to independently review the sentence in light of the errors made by the sentencing judge. The court found that the sentence imposed was excessive and ordered a re-sentencing hearing to determine an appropriate sentence. The High Court emphasised the importance of the appellate court exercising its own sentencing discretion and not being swayed by any concession made by the Crown regarding the initial sentence. The final orders included a re-sentencing hearing to be conducted by a different sentencing judge to ensure an appropriate sentence was determined.

Orders