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.
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
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.
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…
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.
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Details
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.