Naim v Regina - [2006] NSWCCA 289

CITATION: Naim v Regina [2006] NSWCCA 289

HEARING DATE(S): 5 September 2006

JUDGMENT OF: Giles JA at 23; Sully J at 1; Latham J at 24

EX TEMPORE JUDGMENT DATE: 09/05/2006

DECISION: Leave to appeal against sentence granted; Appeal against sentence dismissed

LEGISLATION CITED: Drug (Misuse and Trafficking) Act 1985
Crimes (Sentencing Procedure) Act 1999 (NSW)
Poisons and Therapeutic Goods Act 1966 (NSW)

CASES CITED: Queen v Way (2004) 60 NSWLR 168
Regina v Beavan: unreported, NSWCCA 22 August 1991

PARTIES: Fares Naim
Regina

FILE NUMBER(S): CCA 2006/714

COUNSEL: P. Barrett - Crown
S. Hodges (solicitor) - Appellant

SOLICITORS: S. Kavanah - Crown
S. Hodges - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0397

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

LOWER COURT DATE OF DECISION: 27 October 2004

2006/714

GILES JA
SULLY J
LATHAM J
5 September 2006

FARES NAIM v REGINA

Judgment

1 SULLY J: Mr Fares Naim applies for leave to appeal against sentences of imprisonment passed upon him in the Parramatta District Court on 27 October 2004.

2 On 3 June 2004 the applicant was presented before the Parramatta District Court upon AN indictment containing two counts. Count 1 of the indictment charged the applicant with having supplied, on 14 May 2003, a prohibited drug, namely, methylamphetamine. An offence of that character contravenes S25(1) of the Drug (Misuse and Trafficking) Act 1985 and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 15 years. Count 2 charged the applicant, jointly with another name co-offender, of having supplied on 29 May 2003 not less than the large commercial quantity prescribed for the purposes of the relevant legislation in respect of the prohibited drug methylamphetamine. An offence of that character contravenes S25(2) of the Drug (Misuse and Trafficking) Act 1985 and it attracts upon conviction a statutory maximum penalty, relevantly, of imprisonment for life.

3 An offence of that character is affected also by the statutory scheme of standard non parole periods, which is to be found in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The standard non parole period prescribed within the ambit of that scheme for a contravention of S25(2) is a standard non parole period of imprisonment for 15 years.

4 The applicant pleaded guilty to both of the charges thus preferred against him. He asked that there be taken into consideration in sentencing a further offence, which was a contravention, also on 14 May 2003, of s10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW), the substance of the offence being the supply of a restricted substance, namely, ketamine.

5 The learned primary Judge dealt with the applicant as follows: in respect of the offence covered by count one in the indictment his Honour passed a sentence of two years’ imprisonment passed as a fixed term to date from 29 May 2003 and to expire on 28 May 2005. His Honour provided for a fixed term because of the sentence that he passed in…

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 Naim v Regina

Details

AGLC: Naim v Regina [2006] NSWCCA 289
Case: [2006] NSWCCA 289
Decision Date: 05/09/2006

CaseChat Overview and Summary

Fares Naim sought leave to appeal against the sentences passed upon him by the Parramatta District Court on 27 October 2004. The appellant pleaded guilty to two counts of drug supply, with the second count involving a large commercial quantity of methylamphetamine. The District Court sentenced the appellant to two years' imprisonment for the first count and nine years for the second count, with a non-parole period of six years. The appellant argued that the primary judge erred in the way he factored the standard non-parole period scheme into his reasoning.

The legal issue was whether the primary judge erred in his approach to the standard non-parole period scheme when sentencing the appellant. The Court noted that the primary judge decided to depart from the standard non-parole period of 15 years for the second count, which was appropriate given the circumstances of the case. The Court held that the primary judge did not err in his approach to the standard non-parole period scheme and dismissed the appeal against sentence.

The Court granted leave to appeal against sentence, but dismissed the substantive appeal. The judges agreed that the sentences imposed were severe but appropriate given the nature of the offences. The Court emphasised the importance of considering all relevant factors, including objective criminality, subjective features, and statutory provisions, in an intuitively synthesised way when sentencing. The Court held that the primary judge did not err in his approach to the standard non-parole period scheme and dismissed the appeal against sentence.

Orders