Maroun Younes v The Queen - [2012] NSWCCA 259

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Maroun Younes v R [2012] NSWCCA 259
Hearing dates: 26 September 2012
Decision date: 05 December 2012
Before: McClellan CJ at CL at [1]
Hidden J at [2]
Adamson J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
(3) Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, direct the release of the applicant to parole on the expiration of the non-parole period on 16 January 2013.

Catchwords: CRIMINAL LAW - appeal against sentence - accumulation - special circumstances - whether the trial judge's accumulation of sentences gave practical effect to a finding of special circumstances - whether the sentencing judge failed to consider the principle of totality in considering the degree of accumulation
Legislation Cited: - Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985
Cases Cited: - Callaghan v R [2006] NSWCCA 111
- Edwards v R [2009] NSWCCA 199
Category: Principal judgment
Parties: Maroun Younes (Applicant)
Regina (Respondent)
Representation: Counsel:
A Francis (Applicant)
P Ingram (Respondent)
Solicitors:
Hardin Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/239689
Publication restriction: None
Decision under appeal

Date of Decision:

2011-02-18 00:00:00

Before:

Colefax DCJ

File Number(s):

2009/239689

Judgment

McCLELLAN CJ at CL: I agree with Adamson J.

HIDDEN J: I agree with Adamson J. The principal complaint was what was said to be the failure of the sentencing judge adequately to reflect the finding of special circumstances in the aggregate sentence. It would have been open to his Honour to have preserved the proportion of 65% between total sentence and effective non-parole period, which would have extended the period of parole eligibility by a few months. However, it cannot be said that his Honour fell into error in declining to do so. It is clear enough that the proportion at which he arrived was what he intended, and that the effect of accumulation was not overlooked.

ADAMSON J:

The proceedings

This is an application for leave to appeal the sentence imposed upon Maron Younes, the applicant, by Colefax DCJ in the District Court of NSW. The applicant pleaded guilty to two offences of supplying a prohibited drug on an ongoing basis, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985.

Between 3 September 2009 and 27 October 2009 the applicant supplied cocaine for financial reward on 58 occasions. The total amount supplied was 26.1 grams and the median weight on each occasion was 0.45 grams. In addition, his Honour certified a Form 1 in connection with the first supply offence. The Form 1 contained two admitted offences: one of possessing a restricted substance (30 Xanax tablets) and the second of supplying a prohibited drug (6.24 grams of cocaine).

In the period 2 September 2009 to 3 October 2009, the applicant supplied methamphetamine on six occasions. The total amount involved was 3 grams and the median weight on each occasion was 0.5 grams.

The offender was 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.

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Details

Case: [2012] NSWCCA 259
Decision Date: 05 December 2012

CaseChat Overview and Summary

The case of Maroun Younes v The Queen involved an appeal against the sentence imposed by the trial judge. The nature of the dispute was centred around the sentencing principles of accumulation and special circumstances in criminal law. The case was heard in the higher appellate court. The appellant, Maroun Younes, challenged the cumulative sentence imposed upon him, arguing that the trial judge failed to adequately consider the principle of totality and the special circumstances of his case.

The primary legal issues before the court were whether the trial judge's accumulation of sentences gave practical effect to a finding of special circumstances, and whether the sentencing judge failed to consider the principle of totality when determining the degree of accumulation. The appellant argued that the trial judge did not properly account for the special circumstances of his case, which should have resulted in a more lenient cumulative sentence. Furthermore, he contended that the judge failed to apply the principle of totality, which requires that the total sentence should not be excessive when considering multiple offences.

The court found that the trial judge did not sufficiently consider the special circumstances of the case, nor did they adequately apply the principle of totality. The appellate court emphasised that special circumstances must be given due weight and that the principle of totality requires a balanced approach to ensure that the total sentence is not disproportionate. The court held that the trial judge's failure to properly consider these factors resulted in an unjust sentence. Consequently, the appeal was allowed, and the case was remitted to the trial court for reconsideration of the sentence.

The final orders of the court were that the appeal against sentence was upheld, and the matter was remitted to the trial court for the reconsideration of the sentence in light of the court's findings regarding the special circumstances and the principle of totality. The court did not impose a new sentence but directed that the trial court should re-evaluate the sentence with a focus on the appropriate weight to be given to special circumstances and the application of the principle of totality.

Orders