Elsaj v R

Case [2017] NSWCCA 124


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Elsaj v R [2017] NSWCCA 124
Hearing dates: 22 May 2017
Date of orders: 08 June 2017
Decision date: 08 June 2017
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
McCallum J at [84]
Decision:

Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – two counts of supply a commercial quantity of prohibited drugs, one count of supply an indictable quantity – two counts of possess proceeds of crime – aggregate sentence of imprisonment for 16 years and 6 months with a non-parole period of 11 years and 6 months – whether sentence manifestly excessive – applicant relying upon seven “comparable” cases – incorrect approach – cases relied upon not comparable – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 193B(2)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss s 44(2), 53A
Criminal Code (Cth) – ss 307, 400
Drug Misuse and Trafficking Act 1985 (NSW) – ss 25(1), 25(2),
Cases Cited: Baquiran v R [2014] NSWCCA 221
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Efstanthiadis v R [2009] NSWCCA 319
JM v R [2014] NSWCCA 297
Kremisis v R [2016] NSWCCA 257
Lowndes v R [1999] HCA 29; 195 CLR 665
R v Cahill [2015] NSWCCA 53
R v Cidan [2014] NSWCCA 66
R v Hatzisavvas v R; R v Lopez-Rios [2016] NSWCCA 147
R v Nykolyn [2012] NSWCCA 219
R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
R v Zolfonoon [2016] NSWCCA 250
Subramaniam v R [2013] NSWCCA 159
The Queen v Pham [2015] HCA 39; 256 CLR 550
Wang, Dong Pei v R [2016] NSWCCA 161
Category:Principal judgment
Parties: Riad Elsaj – Applicant
Regina – Respondent Crown
Representation:

Counsel:
A Francis – Applicant
NJ Adams – Respondent Crown

  Solicitors:
A Bannister – Applicant
Solicitor for Public Prosecutions – Respondent Crown
File Number(s): 2014/342474; 2015/98883
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
07 September 2016
Before:
Sides QC DCJ
File Number(s):
2014/342474; 2015/98883

Judgment

  1. BATHURST CJ: I have had the advantage of reading the judgment of Hoeben CJ at CL in draft. For the reasons given by his Honour, leave to appeal should be granted but the appeal be dismissed.

  2. HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Sides QC DCJ in the Parramatta District Court on 7 September 2016 in relation to the following offences:

Count 1 – supply a commercial quantity of ecstasy (489.49 grams) contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for 20 years and which has a standard non-parole period of…

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AGLC
Elsaj v R [2017] NSWCCA 124
Case
[2017] NSWCCA 124
Decision Date

CaseChat Overview and Summary

The appeal in Elsaj v R involved the appellant who was sentenced to a total imprisonment term of 16 years and 6 months with a non-parole period of 11 years and 6 months. This sentence was imposed following his convictions on two counts of supplying a commercial quantity of prohibited drugs, one count of supplying an indictable quantity, and two counts of possessing proceeds of crime. The High Court of Australia was called upon to determine the appeal against the severity of this sentence.

The primary legal issue that the Court had to resolve was whether the sentence was manifestly excessive. The appellant argued that the sentence was excessive by comparing it to seven other cases that he deemed to be comparable. The Court had to assess whether the appellant's approach to comparing cases was appropriate and whether the cases he cited were indeed comparable to his own circumstances.

The Court found that the appellant had taken an incorrect approach in his comparison of cases. It was noted that the cases he relied upon were not sufficiently comparable to his own situation to support his claim that the sentence was excessive. As a result, the appeal was dismissed. The Court concluded that the sentence was not manifestly excessive, and therefore, the original sentence imposed by the lower court was upheld.

No further orders were made by the Court beyond the dismissal of the appeal and the affirmation of the original sentence.

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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