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Elmir v R

Elmir v R

Case [2023] NSWCCA 260 13 October 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elmir v R [2023] NSWCCA 260
Hearing dates: 22 September 2023
Date of orders: 13 October 2023
Decision date: 13 October 2023
Before: Gleeson JA at [1]
Walton J at [2];
Dhanji J at [3].
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   Quash the sentence imposed in the District Court on 11 March 2022 and in lieu thereof sentence the applicant to a term of imprisonment for 20 years commencing on 8 August 2017 and expiring on 7 August 2037. Set a non-parole period of 12 years commencing on 8 August 2017 and expiring on 7 August 2029.

Catchwords:
CRIME – appeals – appeal against sentence – serious conspiracy to import drug offence – parity – disparity between applicant and co-offender – where co-offender’s sentence successfully appealed – justifiable sense of grievance – appealed allowed – applicant resentenced

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code 1995 (Cth)

Cases Cited:
Bahcekapiliv R [2020] NSWCCA 296
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Fenech v R [2018] NSWCCA 160
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hung v R [2023] NSWCCA 172
Ibrahim v R [2022] NSWCCA 161
Jones v The Queen (1993) 67 ALJR 376
Kelly v R [2017] NSWCCA 256
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Clarke [2013] NSWCCA 260
R v Elmir [2022] NSWDC 317
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Tisalandis [1982] 2 NSWLR 430
Smith v The Queen [2022] NSWCCA 123
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
Wood v R [2022] NSWCCA 84

Texts Cited:
D A Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann)

Category: Principal judgment
Parties: Steven Francis Fawaz Elmir (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Game SC with A Francis (Applicant)
P McDonald SC with P McEniery (Respondent)
Solicitors:
Archbold Gittani Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2017/252667
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Elmir [2022] NSWDC 317

Date of Decision:

11 March 2022

Before:

Yehia SC DCJ

File Number(s):

2017/00252667

JUDGMENT

GLEESON JA: I agree with Dhanji J
WALTON J: I agree with the orders proposed by Dhanji J for the reasons given by his Honour.
DHANJI J:

Introduction

Steven Francis Fawaz Elmir (the applicant) seeks leave to appeal the severity of the sentence imposed on him by Yehia SC DCJ (as her Honour then was) in the District Court at Sydney on 11 March 2022. The application and any subsequent appeal are…

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 Elmir v R

Details

AGLC: Elmir v R [2023] NSWCCA 260
Case: [2023] NSWCCA 260
Decision Date: 13 October 2023

CaseChat Overview and Summary

The case of Elmir v R concerned an appeal by the applicant, who was convicted for his involvement in a serious conspiracy to import a controlled drug. The appeal was directed against the sentence imposed by the court. The applicant's co-offender had successfully appealed against their sentence, resulting in a disparity between the sentences of the two offenders. The applicant argued that the disparity caused a justifiable sense of grievance.

The central legal issue before the court was whether the disparity in sentences between the applicant and his co-offender was justified. The applicant contended that the disparity gave rise to a justifiable sense of grievance and that the original sentence should be reviewed in light of the co-offender's successfully appealed sentence. The court was required to determine if the disparity was sufficient to warrant a reconsideration of the applicant's sentence.

The court held that the significant disparity in sentences between the applicant and his co-offender, who had successfully appealed, did indeed give rise to a justifiable sense of grievance. This disparity undermined the principle of parity in sentencing, which is fundamental to the fairness of the criminal justice system. As a result, the court allowed the applicant's appeal against sentence. The applicant was resentenced by the court, ensuring that the principles of parity and fairness in sentencing were upheld.

Orders