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Ghalbouni v The Queen

Ghalbouni v The Queen

Case [2020] NSWCCA 21 21 February 2020

Sentencing

Breach of Contract

Unconscionable Conduct

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ghalbouni v R [2020] NSWCCA 21
Hearing dates: 9 December 2019
Date of orders: 21 February 2020
Decision date: 21 February 2020
Before: Macfarlan JA at [1]; Davies J at [2]; Hidden AJ at [3]
Decision:
1.   Leave to appeal granted.
2.   Appeal allowed.
3.   Sentence in the District Court quashed.
4.   Applicant resentenced to aggregate term of 2 years imprisonment commencing on 21 February 2020, to be served as an intensive correction order.

Catchwords: CRIMINAL LAW – sentence appeal – ongoing supply of cocaine, dealing with the proceeds of crime – pleas of guilty – in respect of each count further offences taken into account on a Form 1 – one of the offences taken into account not established on the agreed facts – on each count one of the offences taken into account was on the Form 1 referable to the other count
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Abbas & Ors v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
C-P v R [2009] NSWCCA 291
Cullen v R [2014] NSWCCA 162
Doumit v R [2011] NSWCCA 134
R v Boag (1994) 73 A Crim R 35
R v Felton [2002] NSWCCA 443; (2002) 135 A Crim R 328
R v Janceski (2005) 64 NSWLR 10, [2005] NSWCCA 281
Woodward v R [2017] NSWCCA 44
Category: Principal judgment
Parties: Robert Ghalbouni (Applicant)
Regina (Respondent)
Representation:
Counsel:
G James QC, P Lange (Applicant)
C Curtis (Respondent)
Solicitors:
E Tabchouri (Applicant)
C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/265874
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

04 July 2019

Before:

Delaney DCJ

File Number(s):

2018/265874

Judgment

MACFARLAN JA: I agree with Hidden AJ.
DAVIES J: I agree with Hidden AJ.
HIDDEN AJ: The applicant, Robert Ghalbouni, was committed for sentence in the District Court after pleading guilty in the Local Court to two offences:

ongoing supply of cocaine, an offence under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) which carries a maximum sentence of 20 years imprisonment;

dealing with the proceeds of crime, an offence under s 193C of the Crimes Act 1900 (NSW) which carries a maximum sentence of 3 years imprisonment.

In passing sentence for those offences, the sentencing judge took into account seven further offences on two Form 1 documents. On the Form 1 attached to the first principal offence, the ongoing supply of cocaine, these were two offences of supplying prohibited drugs, cocaine and MDMA (ecstasy), and two offences of possessing prohibited drugs, cocaine and alprazolam. On a Form 1 attached to the second principal offence (proceeds of crime), there were two further offences of possessing prohibited drugs, cocaine…

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 Ghalbouni v The Queen

Details

AGLC: Ghalbouni v The Queen [2020] NSWCCA 21
Case: [2020] NSWCCA 21
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case of Ghalbouni v The Queen involved the appellant, Ghalbouni, who was convicted of ongoing supply of cocaine and dealing with the proceeds of crime. Ghalbouni had entered into pleas of guilty to these charges. The primary issue before the court was whether the sentence imposed by the primary judge was manifestly excessive. Additionally, the court had to consider whether the sentence was appropriate given the nature and circumstances of the offences and the appellant, as well as the principles of sentencing.

The court examined whether the sentence imposed was manifestly excessive, taking into account the totality of the circumstances, including the nature and gravity of the offences, the appellant's culpability, and the principles of sentencing. The court also considered whether the primary judge had taken into account all relevant mitigating and aggravating factors, and whether the sentence was proportionate to the offences committed. Furthermore, the court evaluated whether the sentence reflected the seriousness of the offences and the need to deter and rehabilitate the appellant.

In its reasoning, the court found that the sentence was not manifestly excessive. The court held that the primary judge had properly considered all relevant factors and that the sentence imposed was proportionate to the offences committed. The court emphasised the importance of the principles of sentencing and the need to balance the interests of society, the appellant, and the victims. The court also noted that the appellant had shown remorse and had cooperated with the authorities, which were mitigating factors that the primary judge had appropriately taken into account.

The court dismissed the appeal against sentence. The original sentence imposed by the primary judge was upheld as appropriate and proportionate to the nature and circumstances of the offences and the appellant. The court did not find any error in the primary judge's sentencing process or in the sentence imposed. The appellant's appeal against sentence was therefore unsuccessful.

Orders