Jawosh v The Queen - [2018] NSWCCA 162

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Jawosh v R [2018] NSWCCA 162
Hearing dates: 13 July 2018
Decision date: 10 August 2018
Before: Payne JA at [1];
R A Hulme J at [2];
Button J at [58]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal allowed.
(3) Quash the sentence imposed in the District Court on 4 July 2017.
(4) Sentence the applicant to an aggregate term of imprisonment for 6 years and 6 months with a non-parole period of 4 years. The sentence is to date from 27 May 2016. The non-parole period will expire on 26 May 2020 whereupon the applicant will become eligible for release on parole.

Catchwords: CRIME – sentence appeal – supply prohibited drug and possess prohibited weapon – sentenced to aggregate sentence of 8 years with non-parole period of 4 years – whether sentencing judge erred by finding possession of tasers connected to drug supply – finding of the sentencing judge well open to him – ground rejected – whether aggregate sentence manifestly excessive – sentences imposed very high for offences specified as below midrange – sentences for summary offences dealt with on indictment obviously excessive – aggregate sentence an unreasonable outcome and manifestly excessive – resentenced to 6 years 6 months with non-parole period of 4 years
Legislation Cited: Crimes Act 1900 (NSW) s 193C
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(c)
Criminal Procedure Act 1986 (NSW) s 166
Drug Misuse and Trafficking Act 1985 (NSW) ss 10, 25, 36Y
Weapons Prohibition Act 1998 (NSW) s 7, Sch 1
Cases Cited: Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353
Luu v R [2008] NSWCCA 285
Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170
Category: Principal judgment
Parties: Shahab Jawosh (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Boland (Applicant)
Mr F Veltro (Crown)
Solicitors:
NC Defence Lawyers
Solicitor for Public Prosecutions

File Number(s): 2016/162673
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

04 July 2017

Before:

Colefax SC DCJ

File Number(s):

2016/162673

Judgment

PAYNE JA: I agree with R A Hulme J.
R A HULME J: Shahab Jawosh ("the applicant") seeks leave to appeal against an aggregate sentence of imprisonment imposed upon him by his Honour Judge Colefax SC in the District Court at Parramatta on 4 July 2017.
The sentence – 8 years with a non-parole period of 4 years – was imposed in respect of eight offences which were contrary to the Drug Misuse and Trafficking Act 1985 (NSW), the Weapons Prohibition Act 1998 (NSW), and the Crimes Act 1900 (NSW). The applicant had pleaded guilty in the Local Court and had been committed to the District Court in respect of five of these offences. The other three were related summary offences that were referred to the District Court by being listed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

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 Jawosh v The Queen

Details

AGLC: Jawosh v The Queen [2018] NSWCCA 162
Case: [2018] NSWCCA 162
Decision Date: 10 August 2018

CaseChat Overview and Summary

In the case of Jawosh v The Queen, the appellant, Jawosh, was convicted for supplying a prohibited drug and possessing a prohibited weapon. The case was heard and determined by the High Court of Australia. The primary issue before the court was whether the sentencing judge erred in his findings, particularly in linking the possession of tasers with the drug supply, and if the aggregate sentence of 8 years with a non-parole period of 4 years was manifestly excessive.

The court examined the sentencing judge's findings and concluded that the connection made between the possession of tasers and the drug supply was within the bounds of what the judge could reasonably find, given the evidence presented. Therefore, the court dismissed this ground of appeal. The court then turned to the question of whether the aggregate sentence was manifestly excessive. The court noted that while the sentences for the individual offences were not excessively high, the aggregate sentence was considered obviously excessive when considering the nature of the summary offences dealt with on indictment. The court found that the aggregate sentence was an unreasonable outcome and manifestly excessive.

Consequently, the court ordered that the appellant be resentenced. The new sentence imposed was 6 years and 6 months with a non-parole period of 4 years. This decision reflects the court's consideration of the nature and gravity of the offences, as well as the appropriate balance in sentencing.

Orders