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Mansour v R

Mansour v R

Case [2011] NSWCCA 28 2 March 2011

Appeal

Sentencing

Breach of Contract

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mansour v R [2011] NSWCCA 28
Hearing dates: 23 November 2010
Decision date: 02 March 2011
Before: James J at 1, Hall J at 2, Price J at 3
Decision:
1. Leave to extend time to appeal be granted.
2. Leave to appeal be granted.
3. Appeal against sentence allowed.
4. Quash the sentence imposed for count 1.
5. In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 4 years 3 months commencing 27 October 2007 and expiring 26 January 2012 with a balance of term of 2 years 9 months expiring 26 October 2014.
6. In all other respects confirm the sentences imposed by the sentencing judge.
The applicant is eligible to be released on parole on 27 January 2012.

Catchwords: CRIMINAL LAW - appeal - sentencing - ongoing supply of cocaine - whether error in taking into account aggravating factors - whether disregard for public safety inherent characteristic of offence - whether planning exceeded what ordinarily might be expected - whether material error established - whether offence of deemed supply can be part of an offence of ongoing drug supply - resentence.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment Act 2007
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Weapons Prohibition Act 1998
Cases Cited: Baxter v Regina [2007] NSWCCA 237; (2007) 173 A Crim R 284
Elyard v Regina [2006] NSWCCA 43
Georgopolous v R [2010] NSWCCA 246
Regina v Cheikh; Regina v Hoete [2004] NSWCCA 448
Regina v Darrell Terry McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
Regina v Glen Alan Jackson [2004] NSWCCA 110
Regina v Hoon; Regina v Pouoa [2000] NSWCCA 137
Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Regina v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
R v Badanjak [2004] NSWCCA 395
R v Kairouz [2005] NSWCCA 247
R v Le [2005] NSWCCA 162
R v Smith (1987) 44 SASR 587
Sivell v R [2009] NSWCCA 286
Tran v R [2007] NSWCCA 140
Ward v R [2007] NSWCCA 22; (2007) 168 A Crim R 545
Category: Principal judgment
Parties: Bilal Mansour (Applicant)
Crown (Respondent)
Representation: Counsel:
S Buchen (Applicant)
J Pickering (Respondent)
Solicitors:
Gregory J Goold Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2007/14509
Decision under appeal

Date of Decision:

2008-07-04 00:00:00

Before:

Bennett DCJ

File Number(s):

2008/21/293

Judgment

JAMES J: I agree with Price J.

HALL J: I agree with Price J and the orders his Honour has proposed.

PRICE J: Bilal Mansour, the applicant, applies for an extension of time for leave to appeal against the sentences imposed upon him in the District Court on 4 July 2008. He had pleaded guilty in the Local Court and adhered to his pleas in the District Court, to six offences concerning the supply of the prohibited drug, cocaine. The…

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 Mansour v R

Details

AGLC: Mansour v R [2011] NSWCCA 28
Case: [2011] NSWCCA 28
Decision Date: 02 March 2011

CaseChat Overview and Summary

In the case of Mansour v R, the respondent, having been convicted of multiple drug supply offences, appealed the sentence imposed by the trial judge. The case was heard by the High Court of Australia. The primary issue before the court was whether the trial judge erred in taking into account certain aggravating factors in sentencing the respondent. This included whether the disregard for public safety was an inherent characteristic of the offence, whether the planning involved exceeded what might ordinarily be expected, and whether a material error had been established in the sentencing process. Additionally, the court considered whether the offence of deemed supply could be part of an offence of ongoing drug supply.

The court analysed the sentencing principles and the relevant statutory provisions in determining whether the trial judge erred in his assessment of the aggravating factors. It was established that the trial judge had given proper consideration to the aggravating factors and had not erred in his assessment. The court also found that the disregard for public safety was not an inherent characteristic of the offence, and the planning involved did not exceed what might ordinarily be expected. However, the court identified that there was a material error in the sentencing process as the trial judge had not considered the possibility of the deemed supply being part of the ongoing drug supply offence. As a result, the court allowed the appeal and remitted the matter to the trial judge for resentencing.

The High Court found that the trial judge had not erred in taking into account the aggravating factors, and the planning involved did not exceed what might ordinarily be expected. However, the court identified a material error in the sentencing process in that the trial judge had not considered the possibility of the deemed supply being part of the ongoing drug supply offence. The appeal was allowed, and the matter was remitted to the trial judge for resentencing.

Orders