Khalil v The The Queen

Case [2022] NSWCCA 36


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

  1. PRICE…

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

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.

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