Jomaa v The Queen - [2019] NSWCCA 98

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Jomaa v R [2019] NSWCCA 98
Hearing dates: 10 May 2019
Decision date: 20 May 2019
Before: Payne JA at [1];
Harrison J at [2];
R A Hulme J at [3]
Decision:
1. Leave to appeal granted and appeal allowed.
2. Quash the limiting terms imposed in the District Court on 28 March 2018.
3. Nominate the following limiting terms:
(a) Count 1: a limiting term of 12 months dating from 2 February 2016.
(b) Count 2: a limiting term of 2 years dating from 2 February 2016.
(c) Count 3: a limiting term of 2 years dating from 2 February 2017.
(d) Count 4: a limiting term of 2 years dating from 2 February 2018.
(e) Count 6: a limiting term of 3 years dating from 2 February 2016.
4. Confirm the referral of the applicant to the Mental Health Review Tribunal made by the District Court on 28 March 2018.

Catchwords: CRIME – appeals – Mental Health (Forensic Provisions) Act 1990 (NSW) – appeal against nominated limiting terms – drug supply offences and direct activities of criminal group offence – applicant suffered stroke after arrest – Mental Health Review Tribunal assessed applicant as unfit to be tried – no error in finding applicant an inappropriate medium for general deterrence – error in taking into account specific deterrence – no likelihood of applicant reoffending due to mental condition – appeal allowed – reapplication of totality principle – lower total effective limiting term nominated – referral to Mental Health Review Tribunal confirmed
Legislation Cited: Crimes Act 1900 (NSW), s 93T(1A)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Criminal Appeal Act 1912 (NSW), s 6A
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 23, 23(1)(a), 23(1)(b), 24, 44, 46, Pt 2
Cases Cited: Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Anderson [1981] VR 155
R v Chong [2012] NSWSC 1309
R v Engert (1995) 84 A Crim R 67
R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep)
R v Mooney (Court of Appeal (Vic), 21 June 1978, unrep)
R v Scognamiglio (1991) 56 A Crim R 81
R v Wright (1997) 93 A Crim R 48
Category: Principal judgment
Parties: Elias Jomaa (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms S Kluss (Applicant)
Mr G Newton (Crown)
Solicitors:
Oxford Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/250423
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

28 March 2018

Before:

Buscombe DCJ

File Number(s):

2015/250423

Judgment

PAYNE JA: I agree with R A Hulme J.
HARRISON J: I agree with R A Hulme J.
R A HULME 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 The Queen

Details

AGLC: Jomaa v The Queen [2019] NSWCCA 98
Case: [2019] NSWCCA 98
Decision Date: 20 May 2019

CaseChat Overview and Summary

The appellant, Mr Jomaa, was convicted of various drug supply offences and the offence of direct activities of a criminal group. Following his arrest, Mr Jomaa suffered a stroke, leading to his unfitness to be tried as assessed by the Mental Health Review Tribunal. The primary issue before the court was whether the sentencing judge erred in determining the appropriate limiting terms for Mr Jomaa's offences, particularly in the context of his mental health condition. The court had to examine if the nominated limiting terms were appropriate, considering both general and specific deterrence factors.

The court concluded that while there was no error in the finding that Mr Jomaa was an inappropriate medium for general deterrence, there was an error in the consideration of specific deterrence. Given Mr Jomaa's current mental condition, the court found there was no likelihood of him reoffending. Consequently, the appeal against the nominated limiting terms was allowed. The court applied the totality principle to recalculate the total effective limiting term, resulting in a lower sentence. Additionally, the court confirmed the referral to the Mental Health Review Tribunal for reassessment of Mr Jomaa's fitness to be tried.

The final orders of the court were to reduce the total effective limiting term for Mr Jomaa and to confirm the referral to the Mental Health Review Tribunal. This decision underscores the importance of accurately assessing both general and specific deterrence when sentencing individuals with significant mental health impairments.

Orders