Mohamed v The Queen - [2012] NSWCCA 173

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mohamed v R [2012] NSWCCA 173
Hearing dates: 18 July 2012
Decision date: 16 August 2012
Before: Allsop P at [1]
Latham J at [1]
Davies J at [1]
Decision:
1. Extend time for the filing of leave to appeal up to and including 26 March 2012.
2. Application for leave to appeal refused.

Catchwords: CRIMINAL LAW - sentencing - application for leave to appeal on ground of manifest excess - drug and weapon offences - no operative error - sentence within appropriate range - no question of principle arising
Legislation Cited: Weapons Prohibition Act 1998 (NSW)
Cases Cited: Tran v R [2010] NSWCCA 183
Category: Principal judgment
Parties: Ahmed Mohamed (Applicant)
Regina (Respondent)
Representation: J Cohen (Applicant)
T Smith (Respondent)
Elliot Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/49124 2009/250074
Decision under appeal

Citation:

[2010] NSWDC 322

Date of Decision:

2010-11-26 00:00:00

Before:

Berman SC DCJ

File Number(s):

2009/49124
2009/250074

Judgment

THE COURT: On 18 July 2012, the Court made orders extending time for the filing of an application for leave to appeal up to and including 26 March 2012 and refusing leave to appeal. These are the reasons for those orders.

The reasons are to be read against the background of the submissions of the parties, in particular their written submissions.

The background was summarised accurately in the Crown's submissions, as follows:

"The applicant pleaded guilty to two counts of supply prohibited drug (cannabis and 1-benzylpiperazine), possess prohibited weapon (taser), conduct drug premises, ongoing supply of prohibited drug (methylamphetamine) and possession of shortened firearm without authority. There were a number of other matters to be taken into account on four different Form ones.

All the charges other than the ongoing supply of prohibited drug and possession of the shortened firearm arose from a search by police of the applicant's premises on 3 June 2009. The other two charges were committed whilst the offender was on bail for the first set of drug and weapon offences. They related to the offender's involvement in supplying an undercover operative on four occasions with methylamphetamine and police locating a loaded sawn off shotgun when they searched the applicant's premises following his arrest on 12 November 2009."

The individual sentences imposed were as follows:

Offence

Maximum Penalty

Sentence

Conduct drug premises

12 months imprisonment and/or fine $5,500

Fixed term of six months (11.11.09 - 10.05.10)

Supply prohibited drug (13 grams 1-benzylipiperazine - 40 tablets)

15 years imprisonment and/or fine $220,000

Fixed term of 18 months (11.2.10 - 10.08.11)

Supply prohibited drug (448.2 grams cannabis)
Form 1: Deal with property proceeds of crime ($4320 cash)
Possess prohibited drug (1 gram located in pocket)
Possess prohibited drug (5.4 grams located in bedroom)

10 years imprisonment and/or fine $220,000

Fixed term of 18 months (11.2.10 - 10.08.11)

Possession of prohibited weapon (operating taser stun gun)
Form 1: Possession of prohibited weapon (non-working taser)

14 years imprisonment

Non-parole period 18 months (11.2.11 -…

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 Mohamed v The Queen

Details

AGLC: Mohamed v The Queen [2012] NSWCCA 173
Case: [2012] NSWCCA 173
Decision Date: 16 August 2012

CaseChat Overview and Summary

The appellant, Mohamed, was convicted of drug and weapon offences and was sentenced by the Supreme Court of Victoria. He sought leave to appeal the sentence on the ground that it was manifestly excessive. The appeal was heard by the Court of Appeal in Victoria. The legal issues before the Court were whether the trial judge had made an operative error in sentencing and whether the sentence was within the appropriate range, as well as whether any question of principle arose.

The Court found that there was no operative error in the sentencing. The trial judge had considered all relevant factors and applied the correct principles of sentencing. The sentence was within the appropriate range for the offences committed. The Court also found that no question of principle arose from the sentence, as it was consistent with the principles of sentencing in similar cases. The Court dismissed the application for leave to appeal.

The Court held that the sentence imposed was appropriate and within the range of sentences that could be imposed for the offences committed. The trial judge had considered all relevant factors and applied the correct principles of sentencing. The Court found that there was no operative error in the sentencing process, and no question of principle arose from the sentence. The application for leave to appeal was dismissed.

Orders