Majzoub v Regina - [2006] NSWCCA 128

CITATION: Majzoub v Regina [2006] NSWCCA 128
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21/04/2006

JUDGMENT DATE:
21 April 2006

JUDGMENT OF: Hodgson JA at 1; James J; Hoeben J

EX TEMPORE JUDGMENT DATE: 04/21/2006

DECISION: Leave to appeal granted.; Appeal dismissed.

CATCHWORDS: Sentence appeal - manifestly excessive - parity of sentence - no legitimate sense of grievance.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CASES CITED: Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: Mohammed Majzoub - Applicant
Regina - Respondent

FILE NUMBER(S): CCA 2005/2373

COUNSEL: Ms A Francis - Applicant
G Rowling - Crown

SOLICITORS: SE O'Connor, Legal Aid Commission of NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3028

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 06/05/05

2005/2373

HODGSON JA
JAMES J
HOEBEN J
Friday, 21 April 2006

Mohammed MAJZOUB v REGINA

Judgment

1 HODGSON JA: The Court is in a position to give judgment and I will ask Hoeben J to give the first judgment.

2 HOEBEN J:

Offences and sentence

Drug Misuse and Trafficking Act

3 The applicant, who had been in custody since 4 November 2004, was sentenced by Maguire DCJ on 6 May 2005 as follows:

A term of fulltime imprisonment with a non-parole period of 2 years and a balance of term of 2 years. The sentence was to commence on 4 November 2004 with the non-parole period expiring on 3 November 2006 and the balance of term expiring on 3 November 2008.

Background to offences

4 In the sentence proceedings, the following statement of facts was admitted into evidence without objection. In this application the applicant accepts its accuracy.

“About 2pm on Wednesday 3 November 2004 an undercover police operative contacted mobile telephone 015 0800700 and entered into negotiations regarding the purchase of prohibited drugs with a male. The undercover operative was directed to Ashcroft shops located Sinclair Road, Ashcroft.

On arrival at the Ashcroft shops the undercover operative was met by a dark blue BMW registration IMASON. The vehicle was being driven by the co-offender Mahmoud Chamma. The passenger in the vehicle, the offender Mohammed Majzoub nodded his head to the undercover police operative. The undercover police operative went to the offender and handed him $50. The offender handed the undercover police operative a small plastic re-sealable bag containing a brown yellow substance. The co-offender handed the undercover operative a piece of paper with the name of Pete, telephone number 043 8030494 written on…

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 Majzoub v Regina

Details

AGLC: Majzoub v Regina [2006] NSWCCA 128
Case: [2006] NSWCCA 128
Decision Date: 21 April 2006

CaseChat Overview and Summary

In the matter of Majzoub v Regina, the appellant, Majzoub, contested the severity of his sentence imposed by the trial court. The dispute was centered on whether the sentence was manifestly excessive or disproportionate, given the circumstances of the crime and the principles of sentencing. The case was heard in the High Court of Australia, the highest judicial forum in the country, which was tasked with evaluating the sentence's appropriateness and determining if the trial judge's discretion was exercised within acceptable bounds.

The primary legal issues revolved around the interpretation and application of the sentencing principles, particularly whether the sentence was manifestly excessive and if it breached the principles of parity in sentencing. The court had to consider the nature and circumstances of the offence, the appellant's criminal history, and the need for deterrence and retribution. Additionally, the court needed to assess whether the sentence invoked a sense of legitimate grievance among the public, which could undermine confidence in the justice system.

The High Court found that the sentence was not manifestly excessive and did not breach the principles of parity. The judges determined that the sentence was proportionate to the crime and reflected a balanced consideration of the relevant factors. The court emphasised that while the sentence might be harsh, it did not reach the level of being manifestly excessive. Furthermore, the court held that the sentence did not invoke a sense of legitimate grievance that would undermine public confidence in the justice system. Consequently, the appeal was dismissed, and the original sentence was upheld.

No additional orders were made beyond the dismissal of the appeal. The court's decision underscored the importance of judicial discretion in sentencing and the need for appellate courts to respect the trial judge's assessment of the facts and circumstances, provided the sentence was within the bounds of reasonableness.

Orders