R v Abbas - [2023] NSWDC 281

District Court

New South Wales

Medium Neutral Citation: R v Abbas [2023] NSWDC 281
Hearing dates: 27 January 2023, 17 February 2023
Date of orders: 17 February 2023
Decision date: 17 February 2023
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of four years, three months with a non-parole period of two years, six months: [54]

Catchwords:
CRIME — Drug offences — Supply prohibited drug
CRIME — Firearms offences — Unauthorised use/possession of firearm
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Form 1 offences — Maximum penalty — Multiple offences — Parole period — Purposes of sentencing
SENTENCING — Subjective considerations on sentence — Drug addiction

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 14
DH v R [2022] NSWCCA 200
R v Abbas [2013] NSWSC 1379

Category: Sentence
Parties:
Rex (Office of the Director of Public Prosecutions)
Khaldoun Abbas (Offender)
Representation:
Ms T Lumsden (Solicitor, Office of the Director of Public Prosecutions)
Mr P Lange (Counsel for the offender)

File Number(s): 2021/261936

Judgment

In September 2013, Khaldoun Abbas was sentenced by Beech‑Jones J for offences including manslaughter arising out of an event on 15 August 2011 (R v Abbas [2013] NSWSC 1379, which his Honour described at [65]:

At a very young age the offender has embarked upon what appears to be a half-baked attempt at gangsterism. It has left his good friend dead, a family devastated, him incarcerated and his daughter effectively fatherless. He has time to contemplate his actions. Unlike his friend, he will have an opportunity to make a life for himself.

That arose out of circumstances where Abbas and his friend Hassan Saleh went to try and enforce a drug debt. He was the organiser of the beating and the one who administered the blows, and in the course of the scuffle a gun went off, killing his friend.
He was sentenced to an overall period of 11 years imprisonment, eight years non‑parole period, and he was released to parole on 14 August 2019, after eight years.
He went back into custody on 14 August 2021, just over two years later and has been in custody since that time in relation to a number of offences, principally involving drug supply which occurred over the months before September 2021.
His counsel, Mr Lange, acknowledges that a term of full‑time imprisonment is mandated in the circumstances of this case and having regard to questions of totality and the revocation of parole, there is no contest to the proposition put during submissions that the term of imprisonment should, in the exercise of my discretion,…

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 R v Abbas

Details

AGLC: R v Abbas [2023] NSWDC 281
Case: [2023] NSWDC 281
Decision Date: 17 February 2023

CaseChat Overview and Summary

The case of R v Abbas involved the appellant who was charged with various drug and firearms offences. The appellant was found in possession of prohibited drugs and an unauthorised firearm, leading to his prosecution. The case was heard in the court of appeal, which was tasked with reviewing the sentencing imposed on the appellant. The appellant argued that the sentence was excessive and that mitigating factors, such as his plea of guilty and remorse, should have been given greater weight.

The court was required to determine whether the sentence imposed was appropriate in light of the various aggravating and mitigating factors. The key legal issues included the consideration of the appellant's criminal history, his breach of conditional liberty, and the nature of the offences committed. Additionally, the court had to weigh the purposes of sentencing, such as deterrence and denunciation, against the mitigating factors presented by the appellant.

In its reasoning, the court acknowledged the severity of the offences committed by the appellant, which involved the supply of prohibited drugs and the unauthorised possession of a firearm. The court noted the appellant's previous convictions and breach of conditional liberty as significant aggravating factors. However, the court also recognised the appellant's plea of guilty and expressions of remorse as mitigating factors. The court ultimately determined that, while the offences were serious, the sentence imposed was excessive. The court reduced the sentence to an aggregate term of imprisonment of four years, three months, with a non-parole period of two years, six months.

The court's final orders were that the sentence imposed on the appellant be varied to an aggregate term of imprisonment of four years, three months, with a non-parole period of two years, six months. This decision reflects the court's careful consideration of the relevant factors in sentencing, balancing the need for deterrence with the appellant's mitigating circumstances.

Orders

Orders of the court

An aggregate term of imprisonment of four years, three months with a non-parole period of two years, six months: [54]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Abbas [2023] NSWDC 281
Hearing dates:	27 January 2023, 17 February 2023
Date of orders:	17 February 2023
Decision date:	17 February 2023
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of four years, three months with a non-parole period of two years, six months: [54]
Catchwords:	CRIME — Drug offences — Supply prohibited drug CRIME — Firearms offences — Unauthorised use/possession of firearm SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Form 1 offences — Maximum penalty — Multiple offences — Parole period — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Drug addiction
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Firearms Act 1996
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 14 DH v R [2022] NSWCCA 200 R v Abbas [2013] NSWSC 1379
Category:	Sentence
Parties:	Rex (Office of the Director of Public Prosecutions) Khaldoun Abbas (Offender)
Representation:	Ms T Lumsden (Solicitor, Office of the Director of Public Prosecutions) Mr P Lange (Counsel for the offender)
File Number(s):	2021/261936