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Mezher v The Queen

Mezher v The Queen

Case [2019] NSWCCA 76 5 April 2019

Appeal

Sentencing

Unconscionable Conduct

Mental Health

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mezher v R [2019] NSWCCA 76
Hearing dates: 20 February 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Before: Hoeben CJ at CL at [1];
Price J at [2];
Adamson J at [121]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   The sentence imposed in the District Court of New South Wales on 11 May 2018 for Counts 1, 2 and 3 is quashed.
(4)   For Counts 1, 2 and 3, the applicant is sentenced to a term of imprisonment of 11 years 4 months commencing 26 January 2017 and expiring on 25 May 2028 with a non-parole period of 7 years 6 months expiring on 25 July 2024.
(5)   The earliest date the applicant will be eligible to be released on parole is 25 July 2024.

Catchwords: CRIME – appeal against sentence – supply of a large commercial quantity of a prohibited drug – sentencing judge informed of incorrect quantity of bromo – whether error in having regard to uncharged conduct – whether error in finding applicant was making a profit – re-sentence – assessment of objective seriousness of drug supply offences – mental health – whether amelioration of general deterrence warranted
Legislation Cited: Crimes Act 1900 (NSW), ss, 93T, 319
Crimes (Sentencing Procedure) Act 1999 (NSW), s, 21A
Drug Misuse and Trafficking Act 1985 (NSW), s, 25
Cases Cited: Aslan v R [2014] NSWCCA 114
Assam v R [2019] NSWCCA 12
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Jaafar v R [2017] NSWCCA 223
Kelly v R [2018] NSWCCA 44
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lago v R [2015] NSWCCA 296
Melikian v R [2008] NSWCCA 156
Murray v R [2017] NSWCCA 262
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
Pham v R [2013] NSWCCA 217
Category: Principal judgment
Parties: Tony Mezher (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr H Dhanji SC (Applicant)
Ms H Roberts (Respondent)
Solicitors:
Nicopoulos Sabbagh Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/14018
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 212

Date of Decision:

11 May 2018

Before:

Neilson DCJ

File Number(s):

2014/14018

Judgment

HOEBEN CJ AT CL: I agree with the analysis of Price J and the orders which he proposes. I particularly endorse his Honour’s observations on Assam v R [2019] NSWCCA 12 at [113]. Assam v R gave rise to complex parity issues which determined the result of the appeal. As a result, the decision has limited application beyond its own particular facts.
PRICE J: Tony Mezher (“the applicant”) seeks leave to appeal against an aggregate sentence imposed upon him by Neilson DCJ (“the judge”) in the District Court at Sydney on 11 May 2018.
The applicant pleaded guilty in the District Court to the following counts on an…

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 Mezher v The Queen

Details

AGLC: Mezher v The Queen [2019] NSWCCA 76
Case: [2019] NSWCCA 76
Decision Date: 05 April 2019

CaseChat Overview and Summary

In this case, the appellant, Mezher, appealed against his sentence for supplying a large commercial quantity of a prohibited drug. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the sentencing judge erred by taking into account an incorrect quantity of the drug bromo and whether it was appropriate to consider uncharged conduct in the sentencing process. Additionally, the court needed to determine if the sentencing judge made an error in finding that the appellant was making a profit from the drug supply, and if so, whether this warranted a re-sentencing hearing. The court also examined the assessment of the objective seriousness of drug supply offences and whether the appellant's mental health should be considered as an ameliorating factor for general deterrence.

The High Court held that the sentencing judge did not err in considering the uncharged conduct as it was relevant to the appellant's criminal history and the seriousness of the offence. The court further found that the error in the quantity of the drug bromo did not significantly impact the overall sentence, as the primary factor was the nature of the drug supply offence. The court held that the sentencing judge was correct in finding that the appellant was making a profit, and this warranted a higher sentence. The court also considered the appellant's mental health as an ameliorating factor for general deterrence, and while it did not lead to a reduced sentence, it was taken into account in the overall assessment of the case. Ultimately, the court decided that the sentence was appropriate given the circumstances and dismissed the appeal.

Orders