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
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Jones v The Queen (1993) 67 ALJR 376
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 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
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:
Solicitors:
T Game SC with A Francis (Applicant)
P McDonald SC with P McEniery (Respondent)
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:
- 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
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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…
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- AGLC
- Elmir v R [2023] NSWCCA 260
- Case
- [2023] NSWCCA 260
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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