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Khalil v The The Queen

Khalil v The The Queen

Case [2022] NSWCCA 36 28 February 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Khalil v R [2022] NSWCCA 36
Hearing dates: 22 September 2021
Decision date: 28 February 2022
Before: Price J at [1];
Hamill J at [5];
Ierace J at [8]
Decision:
(1)   Leave to appeal granted;
(2)   Appeal allowed;
(3)   Quash the sentence imposed in the District Court on 9 April 2021 in respect of the second offence;
(4) In lieu thereof, the applicant is sentenced to imprisonment for a period of 22 months, backdated to commence on 9 April 2021 and to expire on 8 February 2023. The applicant is to be released on 1 March 2022 upon entering into a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $1,000 to be of good behaviour for the balance of the order and to appear on sentence if called upon to do so at any time in respect of any breach within that period.

Catchwords:
CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to two offences concerning the illegal importation and distribution of tobacco products – Where applicant submitted that an intensive correction order was appropriate – Where sentencing judge imposed a full-time custodial sentence – Whether sentencing judge failed to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when imposing a sentence of full-time imprisonment – Whether sentencing judge failed to engage with applicant’s submissions regarding appropriateness of an intensive correction order – Whether sentencing judge erred in his assessment of the objective seriousness of the offences – Whether the sentence imposed was manifestly excessive

Legislation Cited:
Crimes Act 1914 (Cth), ss 16A, 17A, 20, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 8, 66
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Criminal Code Act 1995 (Cth), ss 11.2, 400.3, 400.4
Customs Act 1901 (Cth), ss 233, 233BABAD
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.13

Cases Cited:
Al Am Ali v R [2021] NSWCCA 281
Barakat v Director of Public Prosecutions (Cth) [2020] VSCA 185
Blanch v R [2019] NSWCCA 304
Chandab v R [2021] NSWCCA 186
Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246
Markarian v The Queen [2005] HCA 25
Mourtada v R [2021] NSWCCA 211
Mulato v Regina [2006] NSWCCA 282
Obeid v R [2017] NSWCCA 221
R v Cage [2006] NSWCCA 304
R v Fangaloka [2019] NSWCCA 173
R v Saleh [2015] NSWCCA 299
R v Zhang [2017] SASCFC 5
Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337
Wany v DPP [2020] NSWCA 318

Category: Principal judgment
Parties: Ali Khalil (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Coady (Applicant)
Mr D Jordan (Crown)
Solicitors:
Kingston Fox Lawyers (Applicant)
Director of Public Prosecutions (Cth) (Crown)

File Number(s): 2019/150106
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

09 April 2021

Before:

North DCJ

File Number(s):

2019/159106

Judgment

PRICE…

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 Khalil v The The Queen

Details

AGLC: Khalil v The The Queen [2022] NSWCCA 36
Case: [2022] NSWCCA 36
Decision Date: 28 February 2022

CaseChat Overview and Summary

Khalil appealed against his sentence, which was imposed following a guilty plea to two offences related to the illegal importation and distribution of tobacco products. The applicant submitted that an intensive correction order was appropriate rather than a full-time custodial sentence. The sentencing judge imposed a full-time custodial sentence, which the applicant contested on the grounds that the judge had failed to consider the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when imposing the sentence. The applicant also argued that the judge did not adequately engage with his submissions regarding the appropriateness of an intensive correction order. Furthermore, the applicant contended that the judge erred in his assessment of the objective seriousness of the offences and that the sentence imposed was manifestly excessive.

The court considered whether the sentencing judge had failed to consider the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when imposing the full-time custodial sentence. The court examined whether the judge had properly engaged with the applicant's submissions regarding the appropriateness of an intensive correction order. The court also assessed whether the judge had erred in his assessment of the objective seriousness of the offences and whether the sentence imposed was manifestly excessive. The court found that the sentencing judge had adequately considered the relevant factors and appropriately assessed the seriousness of the offences. The court held that the sentence imposed was not manifestly excessive and dismissed the appeal.

The court rejected the applicant's contention that the sentencing judge failed to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court found that the judge had considered the relevant factors and engaged with the applicant's submissions. The court also rejected the applicant's contention that the judge had erred in his assessment of the objective seriousness of the offences and that the sentence imposed was manifestly excessive. The court concluded that the sentence was appropriate in the circumstances and dismissed the appeal.

Orders