Hussein v The Queen - [2020] NSWCCA 342

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:
Daniels v R [2007] NSWCCA 372
Farkas v R (2014) 243 A Crim R 388; [2014] NSWCCA 141
Huang v R [2017] NSWCCA 312
Hughes v R [2008] NSWCCA 48
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 – Respondent
Representation:
Counsel:
D Barrow – Applicant
G Newton – Respondent
Solicitors:
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

HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.
BELLEW J:

INTRODUCTION

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).

The applicant adhered to those pleas when he appeared for sentence before the District Court.
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.
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…

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 Hussein v The Queen

Details

AGLC: Hussein v The Queen [2020] NSWCCA 342
Case: [2020] NSWCCA 342
Decision Date: 18 December 2020

CaseChat Overview and Summary

The case of Hussein v The Queen involved the appellant, who had pleaded guilty to supplying a large commercial quantity of a prohibited drug. The sentencing judge imposed a sentence on the appellant, and the matter is now before the court on the appellant’s application for an extension of time to seek leave to appeal against that sentence. The primary legal issue before the court was whether the sentencing judge erred in treating the appellant’s financial gain as an aggravating factor. The appellant contended that the sentencing judge had failed to adequately consider the financial gain as a separate factor and that this constituted an error in the sentencing process.

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