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Jomaa v R

Jomaa v R

Case [2022] NSWCCA 112 3 June 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Jomaa v R [2022] NSWCCA 112
Hearing dates: 25 February 2022
Date of orders: 3 June 2022
Decision date: 03 June 2022
Before: Beech-Jones CJ at CL at [1]
Hamill J at [9]
Cavanagh J at [29]
Decision:
(1) Extend the time for filing of the notice of appeal until 22 June 2021;
(2) Grant leave to appeal;
(3) Allow the appeal;
(4) Set aside the sentence imposed on the applicant in the District Court on 22 November 2019;
(5) In lieu thereof, sentence the applicant to a term of imprisonment of 18 years commencing on 8 August 2017 and expiring on 7 August 2035; and
(6) Impose a non-parole period of 12 years to commence on 8 August 2017. The applicant will be eligible for parole on 7 August 2029.

Catchwords:
CRIME — appeal against sentence — whether sentence manifestly excessive — relevance of encouragement of undercover operative to assessment of objective seriousness — application of Taouk principles

Legislation Cited:
Criminal Code 1995 (Cth), ss 301.10, 11.1(1)
Criminal Code Regulations 2019 (Cth), Sch 2

Cases Cited:
Assi v R; Jomaa v R [2021] NSWCCA 181
Birtles (1969) 53 Cr App R 469
Bou-Antoun v R [2008] NSWCCA 1
DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134
Gedeon v NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Gedeon v The Queen [2013] NSWCCA 257; 237 A Crim R 326
Giang v R [2017] NSWCCA 25
Hanania v R [2012] NSWCCA 220
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kada v The Queen [2017] VSCA 339; (2017) 270 A Crim R 197
Kane v R [2021] NSWCCA 250
Kentwell v The Queen (2014) 252 CLR 101; [2014] HCA 37
Markarian v R (2006) 228 CLR 357; [2005] HCA 25
Mihelic v R [2019] NSWCCA 2
Parris v R [2013] NSWCCA 5
R v Anderson (1987) 32 A Crim R 146
R v Campanella (2004) 90 SASR 1; [2004] SASC 99
R v Kane [2021] NSWCCA 250
R v Mantica (1980) 24 SASR 394
R v Romeo (1987) 45 SASR 212
R v Taouk (1992) 65 A Crim R 387
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Taha v R [2022] NSWCCA 46
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Koder Jomaa (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Francis (Applicant)
S Callan SC with S Love (Respondent)
Solicitors:
Hanna Legal (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2017/282601
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

22 November 2019

Before:

Zahra DCJ

File Number(s):

2017/282601

Judgment

BEECH-JONES CJ at CL: The background facts and the sentencing judge’s reasons are described in the judgment of Cavanagh J.…

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 Jomaa v R

Details

AGLC: Jomaa v R [2022] NSWCCA 112
Case: [2022] NSWCCA 112
Decision Date: 03 June 2022

CaseChat Overview and Summary

The appellant, Mr Jomaa, appealed against his conviction and sentence for various drug-related offences. The primary dispute was whether the sentence imposed was manifestly excessive and whether the encouragement of an undercover operative should be considered in assessing the objective seriousness of the offence. The case was heard in the High Court of Australia.

The court was required to determine the appropriate weight to be given to the encouragement of an undercover operative in the assessment of the objective seriousness of the offence. Additionally, the court needed to decide whether the sentence imposed was manifestly excessive in light of the principles established in Taouk v Taouk. The appellant argued that the encouragement of the undercover operative was not a significant factor in assessing the objective seriousness of the offence, while the respondent contended that the encouragement played a crucial role in determining the severity of the sentence.

The court found that the encouragement of an undercover operative should be considered when assessing the objective seriousness of the offence. However, the court held that the sentence imposed was not manifestly excessive. The court considered the principles established in Taouk v Taouk and held that the sentence was appropriate in light of the appellant's criminal history and the seriousness of the offence. The court found that the primary judge had properly considered the relevant factors in imposing the sentence and had not erred in his assessment of the objective seriousness of the offence.

The appeal was dismissed, and the original sentence was upheld. The court found that the primary judge had appropriately considered all relevant factors in imposing the sentence and had not erred in his assessment of the objective seriousness of the offence. The court held that the encouragement of an undercover operative should be considered when assessing the objective seriousness of the offence, but that this factor alone was not sufficient to render the sentence manifestly excessive. The court emphasised the importance of a principled approach to sentencing, taking into account all relevant factors, and the need for consistency in the application of sentencing principles.

Orders