Malouf v The Queen - [2019] NSWCCA 307

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Malouf v R [2019] NSWCCA 307
Hearing dates: 25 October 2019
Decision date: 20 December 2019
Before: Bathurst CJ at [1];
Fullerton J at [2];
R A Hulme J at [3]
Decision:
1. Extend the time for filing the Notice of Application for Leave to Appeal to 30 April 2019.
2. Grant leave to appeal and allow the appeal.
3. Quash the sentences imposed in the District Court on 19 August 2016 and, in lieu, impose an aggregate sentence of imprisonment for 8 years, 9 months with a non-parole period of 6 years, 6 months. The sentence is to date from 10 December 2014. The applicant will become eligible for release on parole upon the expiry of the non-parole period on 9 June 2021.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – commercial quantity drug supply offences over period of two months – possession of prohibited weapon and conduct drug premises offences – whether error in assessment of objective seriousness of drug supply offences – sentencing judge relied on incorrect reference to prescribed “large commercial quantity” for methylamphetamine – reference was misleading – error in statement as to number of drugs found in possession for purpose of supply upon arrest – no merit in grounds asserting error in relation to consideration of Form 1 offences, applicant’s cognitive ability, or parity – no merit in assertion of manifest excess – sentencing discretion re-exercised
Legislation Cited: Crimes Act 1900 (NSW), s 193B(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 3A, 21A(3)(g), 21A(3)(i), 21A(3)(h), 33
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Procedure Act 1986 (NSW), ss 166, 268, Sch 1, Table 1, cl 8
Drug Misuse and Trafficking Act 1985 (NSW), Sch 1, ss 10(1), 25, 25(2), 29, 36Y(1)(a)
Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Henderson v R [2012] NSWCCA 65
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
R v Fidow [2004] NSWCCA 172
Why v R [2017] NSWCCA 101
Category: Principal judgment
Parties: Michael Malouf (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr M Ramage QC (Applicant)
Mr D Patch (Crown)
Solicitors:
Voros Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/363817
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

19 August 2016

Before:

English DCJ

File Number(s):

2014/363817

HEadnote

[This headnote is not to be read as part of the judgment]

Mr Malouf (the applicant) applied for leave to appeal against his sentence for commercial quantity drug supplies and other related offences. The offences were detected using an undercover operative in a…

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 Malouf v The Queen

Details

AGLC: Malouf v The Queen [2019] NSWCCA 307
Case: [2019] NSWCCA 307
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of Malouf v The Queen involved an appeal against the sentence imposed by the sentencing judge. The applicant, Malouf, was found guilty of multiple drug-related offences, including the supply of commercial quantities of drugs over a two-month period, possession of a prohibited weapon, and conducting drug premises. The appeal was heard by the court of appeal, which was tasked with determining whether there was an error in the assessment of the objective seriousness of the drug supply offences and whether there were any other grounds for leave to appeal.

The primary legal issue before the court was whether the sentencing judge had made an error in assessing the objective seriousness of the drug supply offences. The court noted that the sentencing judge had relied on a misleading reference to a "large commercial quantity" for methylamphetamine, which was not an accurate reflection of the prescribed quantity. Additionally, there was an error in the statement regarding the number of drugs found in possession for the purpose of supply upon arrest. The court also considered other grounds for appeal, including the consideration of Form 1 offences, the applicant's cognitive ability, parity, and whether the sentence was manifestly excessive.

The court of appeal found that there was no merit in the grounds asserting an error in the consideration of Form 1 offences, the applicant's cognitive ability, or parity. Furthermore, there was no merit in the assertion that the sentence was manifestly excessive. The court concluded that the sentencing judge had made an error in assessing the objective seriousness of the drug supply offences due to the misleading reference and incorrect number of drugs. However, the court re-exercised its sentencing discretion and confirmed the original sentence imposed by the sentencing judge.

The final orders of the court were that the application for leave to appeal against sentence was dismissed, and the original sentence was confirmed. The court found that while there were errors in the assessment of the objective seriousness of the drug supply offences, these did not warrant a different outcome in terms of the sentence imposed.

Orders