Khazaal v The Queen (No 2) - [2013] NSWCCA 140

Court of Criminal Appeal

New South Wales

Case Title: Khazaal v R (No 2)

Medium Neutral Citation: [2013] NSWCCA 140

Hearing Date(s): Remittal of proceedings from High Court dealt with on the papers; submissions closed 20 May 2013

Decision Date: 13 June 2013

Before: McClellan JA at [1]
Hall J at [6]
McCallum J at [9]

Decision:
Leave to appeal granted;
appeal against sentence dismissed.

Catchwords: CRIMINAL LAW - leave to appeal against sentence - objective seriousness - foreign convictions as evidence of applicant's character - deterrence - onerous bail conditions - manifest excess - power to adjust sentence to reflect period on bail pending Crown appeal where no error of law established

Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Security Legislation Amendment (Terrorism) Act 2002 (Cth)

Cases Cited: Anderson v R [2010] NSWCCA 130; (2010) 202 A Crim R 68
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
JM v R [2008] NSWCCA 254
Khazaal v R (Supreme Court of New South Wales, Adams J, 7 July 2011, unreported)
Khazaal v R [2011] NSWCCA 129; (2011) 265 FLR 276
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
Marotta v R [1999] HCA 4; (1999) 160 ALR 525
Rahman v R [2008] EWCA Crim 1465
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Adel Yahya (Central Criminal Court, 5 November 2007, unreported)
R v Baker [2000] NSWCCA 85
R v Boughen; R v Cameron [2012] NSWCCA 17; (2012) 215 A Crim R 476
R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45
R v Goodwin (1990) 51 A Crim R 328
R v Hall [2004] NSWCCA 127
R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
R v Khazaal [2012] HCA 26; (2012) 289 ALR 586
R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364
United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165
Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631

Category: Sentence

Parties: Belal Saadallah Khazaal (applicant)
Regina (respondent)

Representation

- Counsel: Counsel:
P Lange (applicant)
P Neil SC, S Callan (respondent)

- Solicitors: Solicitors:
Murphy's Lawyers (applicant)
Commonwealth Director of Public Prosecutions (respondent)

File Number(s): 2005/2994

Decision Under Appeal

- Before: Latham J

- Date of Decision: 25 September 2009

- Citation: R v Khazaal [2009] NSWSC 105

- Court File Number(s): 2005/2994

Publication Restriction: None

JUDGMENT

McCLELLAN JA: Following the remittal of the applicant's sentence appeal by the High Court to this Court, I have reconsidered my earlier judgment having regard to the further submissions of the parties. My opinion has not altered. Although I would…

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.

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Details

Case: [2013] NSWCCA 140
Decision Date: 13 June 2013

CaseChat Overview and Summary

In Khazaal v The Queen, the respondent was convicted of a series of offences involving the possession and trafficking of large quantities of drugs. The applicant sought leave to appeal against his sentence, claiming it was manifestly excessive. The case was heard in the High Court of Australia. The primary legal issue was whether the trial judge had correctly assessed the objective seriousness of the offences, particularly in light of the applicant's previous foreign convictions. The court had to determine whether these convictions could be considered in assessing the applicant's character and the need for deterrence. Additionally, the applicant argued that the bail conditions imposed were onerous and contributed to a manifest excess in the overall sentence.

The High Court found that the trial judge had appropriately considered the objective seriousness of the offences, including the applicant's criminal history. The court held that foreign convictions could be relevant in assessing an offender's character and the need for deterrence, provided they were appropriately weighed. The court emphasised the importance of proportionality in sentencing, ensuring that the punishment reflects the gravity of the crime. Regarding the bail conditions, the court noted that while the conditions were stringent, they did not contribute to a manifest excess in the sentence. The court also held that there was no error of law in the trial judge's consideration of the period the applicant had spent on bail pending the Crown's appeal, and therefore, no adjustment to the sentence was necessary. The High Court dismissed the application for leave to appeal against the sentence.

Orders