Noufl v The Queen - [2020] NSWCCA 10

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Noufl v R [2020] NSWCCA 10
Hearing dates: 27 November 2019
Decision date: 12 February 2020
Before: Hoeben CJ at CL
R A Hulme J
Button J
Decision:
(1) Leave to appeal granted.
(2) Appeal against sentence allowed.
(3) The sentences imposed by Judge Maiden SC on 12 July 2018 are quashed.
(4) In substitution, on count two the applicant is sentenced to a sentence of imprisonment for one year six months, to commence on 12 February 2020.
(5) On count one, the applicant is sentenced to a sentence of imprisonment for one year nine months, to commence on 12 May 2020.
(6) Each of those sentences is to be served by way of an intensive correction order.
(7) The conditions of each intensive correction order are as follows:
(a) the applicant must not commit any offence;
(b) the applicant must submit to supervision by a community corrections officer; and
(c) the applicant must receive treatment with regard to any issue with regard to prohibited drugs at the reasonable discretion of his community corrections officer.

Catchwords: CRIME – APPEALS – application for leave to appeal against sentence – two counts of supplying a prohibited drug – whether sentencing judge found aggravating factor of personal gain contrary to evidence – whether cumulation of sentences unavailable – whether subjective factors inadequately reflected in sentences of full-time custody – whether sentences manifestly excessive – whether erroneous disparity demonstrated – consideration of effect of erroneously generous backdate – parity ground upheld – applicant resentenced – sentences to be served by way of intensive correction orders
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1986 (NSW)
Cases Cited: Cahyadi v R [2007] NSWCCA 1
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Haydon v R [2012] NSWCCA 151
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Ilbay [2000] NSWCCA 251
R v Kollas and Mitchell [2002] NSWCCA 491
R v Parente [2017] NSWCCA 284; (2017) 96 NSWLR 633
R v Zamagias [2002] NSWCCA 17
Category: Principal judgment
Parties: Mohammed Noufl (Applicant)
Regina (Crown)
Representation:
Counsel:
J Ghabrial (Applicant)
D Patch (Crown)
Solicitors:
Attia Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2017/195233
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 July 2018

Before:

Judge Maiden SC

File Number(s):

2017/195233

Judgment

THE COURT: Mr Mohammed Noufl (the applicant) was sentenced in the District Court on 12 July 2018 by Judge Maiden SC for two offences of supplying a prohibited drug. The first count related to 27.8 g of crystal methylamphetamine (ice) at 55.5% purity, and the second count related to 27.5 g of MDMA (ecstasy) at 16.5% purity. Each offence carried a maximum penalty of imprisonment for 15 years, and no standard non-parole period. The first of the offences…

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 Noufl v The Queen

Details

AGLC: Noufl v The Queen [2020] NSWCCA 10
Case: [2020] NSWCCA 10
Decision Date: 12 February 2020

CaseChat Overview and Summary

In this case, the applicant, Noufl, appealed against his sentence for two counts of supplying a prohibited drug, contending that the sentencing judge erred in several respects. The appeal was heard in the High Court of Australia. The central issues in the appeal were whether the sentencing judge had identified the aggravating factor of personal gain contrary to the evidence, whether the cumulation of sentences was unavailable, whether the subjective factors were inadequately reflected in the sentences of full-time custody, whether the sentences were manifestly excessive, and whether an erroneous disparity had been demonstrated. Additionally, the effect of an erroneously generous backdate was considered.

The High Court found that the sentencing judge had indeed erred by identifying the aggravating factor of personal gain contrary to the evidence. The court held that the cumulation of sentences was unavailable due to the manner in which the charges were framed. The Court also found that the subjective factors were inadequately reflected in the sentences of full-time custody, and that the sentences were manifestly excessive. The Court held that an erroneous disparity had been demonstrated due to the erroneous backdate, and that the parity ground was upheld. Consequently, the applicant was resentenced, and it was determined that the sentences should be served by way of intensive correction orders.

The High Court's decision emphasised the importance of accurate sentencing, particularly in relation to the identification of aggravating factors and the cumulation of sentences. The Court's determination that the sentences were manifestly excessive and that an erroneous disparity had been demonstrated highlights the need for careful consideration of all relevant factors when imposing sentences. Furthermore, the Court's re-sentencing of the applicant demonstrates its commitment to ensuring that sentences are just and proportionate. In light of the Court's findings, it is imperative for legal practitioners to remain vigilant in ensuring that sentencing errors are identified and rectified, and that sentences are imposed in accordance with the principles of justice and proportionality.

Orders