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Khoury v The Queen

Khoury v The Queen

Case [2020] NSWCCA 190 4 August 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khoury v R [2020] NSWCCA 190
Hearing dates: 4 June 2020
Date of orders: 4 August 2020
Decision date: 04 August 2020
Before: Johnson J at [1]
Davies J at [95]
Ierace J at [96]
Decision:
1. Grant leave to appeal against sentence.
2. Appeal against sentence dismissed.

Catchwords:
APPEAL - sentence - applicant pleaded guilty to offences including agreeing to supply large commercial quantity of a prohibited drug (cocaine) contrary to s.25(2) Drug Misuse and Trafficking Act 1985 (“DMT Act”) - applicant supplied substance which was not a prohibited drug - deemed to be prohibited drug under s.40(1) DMT Act - relevant factors on sentence for “drug rip-off” supply offences - “financial gain” as aggravating factor under s.21A(2)(o) Crimes (Sentencing Procedure) Act 1999 - assessment of objective seriousness of offence - error not demonstrated - appeal dismissed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Road Transport Act 2013

Cases Cited:
Aoun v R [2011] NSWCCA 284
Diri v R [2019] NSWCCA 319
Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282
Lee v R [2019] NSWCCA 15
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
R v Addison (1993) 70 A Crim R 213
R v Dendic and Mazzeo (1987) 34 A Crim R 40
R v El Sage; R v Khoury [2019] NSWDC 826
R v Kalpaxis (2001) 122 A Crim R 320; [2001] NSWCCA 119
R v Kijurina [2017] NSWCCA 117
R v Smith [2002] NSWCCA 378
R v Yaghi (2002) 133 A Crim R 490; [2002] NSWCCA 396

Texts Cited:
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Category: Principal judgment
Parties: Anthony Khoury (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr RJ Webb (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Peter Ayoub & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/213942
Publication restriction: ---
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

---

Citation:

R v El Sage; R v Khoury [2019] NSWDC 826

Date of Decision:

20 September 2019

Before:

His Honour Judge Norrish QC

File Number(s):

2018/213942

Judgment

JOHNSON J: By Notice of Application for Leave to Appeal filed on 9 April 2020, the Applicant, Anthony Khoury, seeks leave to appeal with respect to sentences imposed at the Sydney District Court on 20 September 2019 for drug supply offences.

The Offences and Sentences

Following pleas of guilty, the Applicant was sentenced by his Honour Judge Norrish QC for the following offences:

on 9 July 2018, supplying a prohibited drug (27.9 grams of cocaine) contrary to s.25(1) Drug Misuse and Trafficking Act 1985 (“DMT Act”), an offence punishable by a maximum penalty of imprisonment for 15 years;

between 9 and 11 July 2018, agreeing to supply not less than the large commercial quantity of a prohibited drug (represented to be 2,376.2…

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 Khoury v The Queen

Details

AGLC: Khoury v The Queen [2020] NSWCCA 190
Case: [2020] NSWCCA 190
Decision Date: 04 August 2020

CaseChat Overview and Summary

The case of Khoury v The Queen involved the applicant, who pleaded guilty to various offences, including agreeing to supply a large commercial quantity of a prohibited drug, namely cocaine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. The applicant was sentenced in the Supreme Court of Queensland. The applicant's supply involved a substance that was not a prohibited drug, but was deemed to be a prohibited drug under section 40(1) of the DMT Act. The applicant appealed against his sentence on the basis of an error in the consideration of the relevant factors, specifically regarding the sentencing for "drug rip-off" supply offences and the impact of "financial gain" as an aggravating factor under section 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999. The applicant argued that the assessment of the objective seriousness of the offence was flawed.

The court examined whether the primary judge erred in the sentencing process, particularly in relation to the application of the "drug rip-off" concept and the consideration of "financial gain" as an aggravating factor. The court noted that the applicant's supply involved a substance that was not a prohibited drug but was categorised as such under the DMT Act. The court considered the relevant factors for sentencing and the objective seriousness of the offence. The court concluded that no error was demonstrated in the assessment of the objective seriousness of the offence or in the application of the "financial gain" factor. The court found that the primary judge had appropriately considered the relevant factors and the objective seriousness of the offence, and had not erred in the sentencing process.

The appeal was dismissed by the court. The court held that the primary judge had not erred in the sentencing process, and the appeal was dismissed on the basis that no error was demonstrated. The court confirmed the sentence imposed by the primary judge and rejected the applicant's grounds of appeal.

Orders