Kassis v R - [2013] NSWCCA 298

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kassis v R [2013] NSWCCA 298
Hearing dates: 26 November 2013
Decision date: 28 November 2013
Before: Hoeben CJ at CL at [1]
Blanch J at [2]
Price J at [22]
Decision:
Leave granted to appeal
Appeal dismissed
Catchwords: CRIMINAL LAW - sentencing - Drug Misuse and Trafficking Act 1985 - failure to specify discount for plea of guilty
Legislation Cited: Drug Misuse and Trafficking Act 1985
Crimes Act 1900
Poisons and Therapeutic Goods Act 1966
Criminal Appeal Act 1912
Cases Cited: R v Thomson and Houlton (2000) 49 NSWLR 383
R v Lawrence [2005] NSWCCA 91
Category: Principal judgment
Parties: David Michael Kassis (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Boulten SC (Applicant)
S Dowling SC (Respondent
Solicitors:
McGrath, Dicembre & Company )Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/89030
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Citation:

R v David Michael Kassis

Date of Decision:

08 February 2013

Before:

Her Honour Judge Hock

File Number(s):

2012/89030

JUDGMENT

HOEBEN CJ at CL: I agree with Blanch J and the orderwhich he proposes.
BLANCH J: The applicant seeks leave to appeal against sentences imposed in the District Court on 8 February 2013. On 1 February 2013 he confirmed his pleas of guilty made in the Local Court to two counts:

Count 1: Supply prohibited drug (24.6 grams of cocaine) on 15 March 2012 contrary to s 25(1) Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment.

Count 2: Supply large commercial quantity of prohibited drug (997.5 grams of ecstasy) on 15 March 2012 contrary to s 25(2) Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of life and a standard non-parole period of 15 years.

When being sentenced on Count 2 he asked for two matters to be taken into account on the Form 1. The first was Dealing with suspected proceeds of crime ($32,000 in cash) between 15 March 2012 and 20 March 2012 contrary to s 193C(2) Crimes Act 1900 which carries a maximum penalty of two years imprisonment. The second offence was Possess prohibited restricted substance (22 tablets of Theophylline) on 15 March 2012 contrary to s 16(1) Poisons and Therapeutic Goods Act 1966 which carries a maximum penalty of 6 months imprisonment.
On Count 1 he was sentenced to a fixed term of 15 months imprisonment to commence on 20 March 2012 and expiring on 15 June 2013.
On Count 2 he was sentenced to 8 years 6 months commencing 20 September 2012 and expiring on 19 March 2021. A non-parole period was specified of 5 years from 20 September 2012 and expiring on 19 September 2017.
The total sentence was thus one of 9 years imprisonment from 20 March 2012 with a non-parole period of 5 years and 6 months.
The ground of appeal argued is "Her Honour erred by failing to properly take into account the applicant's plea of…

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 Kassis v R

Details

AGLC: Kassis v The Queen [2013] NSWCCA 298
Case: [2013] NSWCCA 298
Decision Date: 28 November 2013

CaseChat Overview and Summary

The case of Kassis v R was heard in the High Court of Australia. The appellant, Mr Kassis, was convicted for offences under the Drug Misuse and Trafficking Act 1985. The primary issue before the court was whether the trial judge had erred by failing to specify a discount in the sentence for the appellant’s early guilty plea. Mr Kassis argued that the trial judge’s failure to articulate a discount contravened the principles established in previous cases, requiring explicit recognition of such a plea.

The court was tasked with determining whether the omission of a specific discount for the guilty plea constituted a significant error that could affect the fairness or accuracy of the sentence. This involved a review of the relevant case law and the statutory provisions concerning sentencing discounts for guilty pleas. The court examined the principle that a sentence should reflect the totality of the circumstances, including the timing of the plea, and whether the omission had any practical impact on the final sentence imposed.

The High Court found that while the trial judge did not explicitly state the discount for the guilty plea, the overall sentence imposed did not exceed what would have been expected had the discount been articulated. The court emphasised that the primary concern was the fairness and accuracy of the sentence, rather than the specific articulation of the discount. Consequently, the court concluded that the failure to specify the discount did not constitute a significant error affecting the fairness of the sentence. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders