CITATION: Nahlous v R [2010] NSWCCA 58 This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S): 2009/4817
HEARING DATE(S): 31/03/2010
JUDGMENT DATE: 9 April 2010
PARTIES: Youssef Habib Nahlous v Regina
JUDGMENT OF: McClellan CJatCL Howie J Rothman J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2009/11/0194
LOWER COURT JUDICIAL OFFICER: Sorby DCJ
LOWER COURT DATE OF DECISION: 09/06/2009
COUNSEL: S McNaughton - Crown G Gillett - Applicant
SOLICITORS: Commonwealth Director of Public Prosecutions - Crown G Gillett - Applicant
CATCHWORDS: CRIMINAL LAW - Sentence - applicant charged with sale of unauthorised decoders and possession of money received from undercover police officer - possession charge an abuse of process - charge dismissed under s 19B(1)(c) of Crimes Act (Cth)
LEGISLATION CITED: Criminal Code 1995 (Cth) - s 400.6(1) Crimes Act 1914 (Cth) - ss 19B(1)(c), 20(1)(b) Copyright Act 1968 (Cth) - ss 135ASB(1), 135ASC(1) Criminal Appeal Act 1912 (NSW) - s 6(3)
DECISION: Application for leave to appeal against sentence is allowed in relation to the count alleging a breach of s 400.6(1) of the Criminal Code 1995 (Cth). The Court quashes the sentence imposed in relation to that count. The Court dismisses the charge pursuant to s 19B(1)(c) of the Crimes Act 1914.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2009/4817
McCLELLAN CJ at CL HOWIE J ROTHMAN J
FRIDAY 9 APRIL 2010
Youssef Habib NAHLOUS v REGINA
Judgment
THE COURT: On 31 March 2010 the Court dealt with this application of leave to appeal and made orders in respect of a sentence imposed for an offence contrary to s 400.6(1) of the Criminal Code 1995 (Cth) that had the effect of quashing the sentence imposed in the District Court for that offence and in substitution dismissing the offence pursuant to s 19B(1)(c) of the Crimes Act 1914 (Cth). These are the reasons for making those orders.
The applicant had pleaded guilty in the Local Court to six offences contrary to the provisions of the Copyright Act 1968 (Cth) (the “decoder offences”) concerning the sale of, or offering to sell, unauthorised decoders. The relevant provisions were ss 135ASB(1) and 135ASC(1) of that Act. He also pleaded guilty to an offence contrary to s 400.6(1) of the Code (the “Code offence”). That section is concerned with dealing in the proceeds of crime. The decoder offences each carried a maximum penalty of imprisonment for 5 years. The Code offence carried a maximum penalty of imprisonment for 10 years.
As a result of the pleas of guilty he was sentenced in the District Court by Sorby DCJ (“the Judge”) on 9 June 2009. For…
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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AGLC
Nahlous v The Queen [2010] NSWCCA 58
Case
[2010] NSWCCA 58
Decision Date
CaseChat Overview and Summary
The case of Nahlous v The Queen was heard in a relevant Australian court where the applicant, Nahlous, faced charges related to the sale of unauthorised decoders and possession of money received from an undercover police officer. The applicant contested the possession charge, arguing it amounted to an abuse of process, and relied on section 19B(1)(c) of the Crimes Act (Cth) to have the charge dismissed. The central issue before the court was whether the possession charge was an abuse of process and if it should be dismissed under the specified section of the Act.
The court examined the nature of the possession charge and the circumstances under which the money was received. It considered whether the charge was brought in a manner that was unjust or oppressive, potentially constituting an abuse of process. The court also evaluated the legislative intent behind section 19B(1)(c) and its applicability to the case. Ultimately, the court found that the circumstances surrounding the receipt of money by the applicant amounted to an abuse of process, and thus, the possession charge was dismissed in accordance with section 19B(1)(c) of the Crimes Act (Cth).
Following this determination, the court proceeded to consider the appropriate sentence for the applicant in relation to the sale of unauthorised decoders. The court took into account the seriousness of the offence, the applicant's criminal history, and any mitigating factors. The court concluded that a balanced and just sentence could be imposed without the influence of the dismissed charge.
The court ordered that the possession charge be dismissed and that the applicant be sentenced for the sale of unauthorised decoders alone. The exact details of the sentence were not specified in the text, but the court's decision provided clarity on the applicable legal principles and the outcome of the proceedings.