Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Hussein v R [2020] NSWCCA 342 Hearing dates: 25 November 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Before: Hoeben CJ at CL [1]
Bellew J at [2]
Wright J at [42]Decision: (1) An extension of time in which to file an application for leave to appeal against sentence is refused.
(2) The appeal is dismissed.
Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Applicant seeking an extension of time in which to seek leave to appeal against sentence – Where applicant pleaded guilty to the supply of a large commercial quantity of a prohibited drug – Evidence of money derived from that supply – Whether sentencing judge erred in treating the applicant’s financial gain as an aggravating factor – Where sentencing judge made no express reference to that being an aggravating factor – Where sentence proceedings not conducted on that basis – No ambiguity in the sentencing judge’s reasons – Unwarranted parsing of reasons – Ground of appeal not made out – Extension of time refused
Legislation Cited: Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Farkas v R (2014) 243 A Crim R 388; [2014] NSWCCA 141
R v Van Hong Pham [2005] NSWCCA 94
Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291
Category: Principal judgment Parties: Ali Hussein – Applicant
Regina – RespondentRepresentation: Counsel:
Solicitors:
D Barrow – Applicant
G Newton – Respondent
Birchgrove Legal – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent
File Number(s): 2016/32885 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 1 September 2017
- Before:
- His Honour Judge Townsden DCJ
Judgment
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HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.
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BELLEW J:
INTRODUCTION
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Ali Hussein (the applicant) pleaded guilty in the Local Court to the following offences:
supplying a large commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (count 1); and
participating in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW) (count 2).
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The applicant adhered to those pleas when he appeared for sentence before the District Court.
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The maximum custodial penalty for the offending in count 1 is life imprisonment and a standard non-parole period of 15 years’ imprisonment is prescribed. The maximum penalty for the offending in count 2 is 5 years’ imprisonment. There is no standard non-parole period applicable to that offence.
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On 1 September 2017 the sentencing judge imposed the following sentences:
count 1 – imprisonment for 9 years with a non-parole period of 6 years, both to commence on 31 March 2016; and
count 2 – a fixed term of imprisonment of 1 year…
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- AGLC
- Hussein v The Queen [2020] NSWCCA 342
- Case
- [2020] NSWCCA 342
- Decision Date
CaseChat Overview and Summary
The court examined the sentencing reasons provided by the judge to determine whether there was any ambiguity or error in the treatment of the financial gain as an aggravating factor. The court found that the sentencing judge had not made any express reference to the financial gain as an aggravating factor and that the sentence proceedings were not conducted on that basis. The court also noted that there was no ambiguity in the sentencing judge’s reasons and that the appellant’s parsing of those reasons was unwarranted. The court concluded that the appellant's ground of appeal was not made out because there was no error in the sentencing process.
Consequently, the court refused the appellant's application for an extension of time to seek leave to appeal against the sentence. The court held that the sentencing judge’s reasons were clear and that there was no error in the treatment of the financial gain as an aggravating factor. The appellant's argument that the sentencing judge had failed to adequately consider the financial gain was dismissed, and the application for an extension of time was accordingly refused.
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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