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R v Achmar

R v Achmar

Case [2018] NSWDC 461 30 November 2018

Sentencing

Breach of Contract

Possession of Unregistered Firearm

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Achmar [2018] NSWDC 461
Hearing dates: 30 November 2018
Date of orders: 30 November 2018
Decision date: 30 November 2018
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of 3 years, 8 months with a 2 year non-parole period: at [53].

Catchwords: SENTENCING – multiple offences – supply commercial quantity of prohibited drug – possess unregistered firearm – Form 1 matter – participate in criminal group – guilty plea – general deterrence – expression of remorse – low likelihood of reoffending
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)
Crimes Act 1990 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: AB v R [2013] NSWCCA 273
B v R [2015] NSWCCA 314
Blair v R [2005] NSWCCA 78
Do v R [2008] NSWCCA 34
Elhassan v R [2018] NSWCCA 118
Giang v R [2017] NSWCCA 25
Greentree v R [2018] NSWCCA 277
Mulato v R [2006] NSWCCA 282
Parente v R [2017] NSWCCA 284
Parris v The Queen [2013] NSWCCA 5
R v Chan [1999] NSWCCA 103
R v Dang [2005] NSWCCA 430
R v DW (2012) 221 A Crim R 63
R v Krstic [2005] NSWCCA 391
R v Mendez [2005] NSWCCA 246
R v Petrovski; R v Abdallah; R v Atanovski [2012] NSWDC 168
R v Pucariello [2012] NSWDC 70
R v Rustom; R v Vernon [2017] NSWDC 245
R v Shi [2004] NSWCCA 135
R v Taouk (1992) 65 A Crim R 387
Sponberg v R [2017] NSWCCA 120
Williams v R [2014] NSWCCA 57
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown)
Charbil Achmar (Offender)
Representation:
Mr H Bates (Crown)
Mr A Bellanto QC (Counsel for the accused)

File Number(s): 2017/74389

Judgment

The distribution of illicit drugs causes considerable harm, not just to those who purchase and take the drugs but to the community in general. The trade in illicit drugs is one of the principal sources for crime in the community. It is not just the sale of drugs. The crimes that are committed by those who seek to obtain funds for drugs and drug use leading to destruction of family and personal life are significant problems.
The seriousness of the offence of supply a commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), is illustrated by the fact that the Parliament has chosen to fix a maximum penalty of 20 years imprisonment and a standard non-parole period of ten years both of which are important guideposts or yardsticks in the sentencing process.
Charbil Achmar, who was born in October 1978, has pleaded guilty to one count of supply a commercial quantity being 355 grams of cocaine in the period between 9 November 2017 and 11 January 2018. He also pleaded guilty to one count of possess an unregistered firearm being a .177 calibre air pistol under s 36 of the Firearms…

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 Achmar

Details

AGLC: R v Achmar [2018] NSWDC 461
Case: [2018] NSWDC 461
Decision Date: 30 November 2018

CaseChat Overview and Summary

The case of R v Achmar was heard in a court of criminal jurisdiction in Australia. The defendant, Achmar, was charged with multiple offences including the supply of a commercial quantity of a prohibited drug, possession of an unregistered firearm, participation in a criminal group, and related charges. Achmar entered a guilty plea to all charges. The central issue for the court was to determine an appropriate sentence that balanced the need for general deterrence with the circumstances of the case, including the defendant's expression of remorse and the low likelihood of reoffending.

The court was required to consider the seriousness of the offences, the role of the defendant within the criminal group, and the circumstances surrounding the possession of the unregistered firearm. The court also had to weigh the defendant's early guilty plea, the absence of any previous criminal record, and the personal circumstances that might mitigate the sentence. The court further considered the impact of the offences on the community and the importance of sending a strong message to deter similar criminal activities in the future.

In delivering its judgment, the court emphasised the gravity of the defendant's actions, particularly the supply of a commercial quantity of a prohibited drug and the possession of an unregistered firearm. The court noted the defendant's early guilty plea and the lack of any previous criminal history as mitigating factors. However, the court also considered the need for general deterrence and the defendant's participation in a criminal group. Ultimately, the court determined that an aggregate term of imprisonment of 3 years and 8 months, with a non-parole period of 2 years, was appropriate. This sentence reflected the seriousness of the offences while also taking into account the mitigating factors presented.

Orders

Orders of the court

An aggregate term of imprisonment of 3 years, 8 months with a 2 year non-parole period: at [53].

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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Citations

R v Achmar [2018] NSWDC 461

Most Recent Citation

R v Malas; R v Chaouk [2020] NSWDC 893

Cases Citing This Decision

R v Malas; R v Chaouk [2020] NSWDC 893
Citation 1 (Para 49)

…71; Assam v R [2019] NSWCCA 12 , Matu v R [2019] NSWCCA 23 , Ebrahami v R [2019] NSWCCA 27 and R v Rustom; R v Vernon [2017] NSWDC 245 and R v Achmar [2018] NSWDC 461 , each of which involve obviously differing objective and subjective circumstances but provide useful guidance in the sentencing process.…

See all citing cases →

Cases Cited

Davis v The Queen [2018] NSWCCA 277
Citation 1 (Para 39)

…oes not amount to exceptional circumstances as Mr Bellanto QC acknowledges would otherwise be required in accordance with cases such as Greentree v R [2018] NSWCCA 277 .…
Elhassan v R [2018] NSWCCA 118
Citation 2 (Para 47)

…Elhassan v R [2018] NSWCCA 118 was also referred to by the Crown. It was a sentence following a verdict of guilty by a jury to a commercial supply offence, of the supply of 278 grams of cocaine. The sentence imposed by Syme DCJ was reduced on appeal to nine years with a six year non-parole period. The offender had p…
Parente v R [2017] NSWCCA 284
Citation 3 (Para 36)

…reference and which I will review together with the cases that Mr Bellanto QC has referred. The Crown correctly notes that as a result of Parente v R [2017] NSWCCA 284 , the Clark principle no longer applies, but it is common ground that the threshold under s 5 has been crossed and the Crown concludes by asserting t…
R v Rustom; R v Vernon [2017] NSWDC 245
Citation 4 (Para 45)

…vance to be of any great assistance in this matter. Reference is also made by Mr Bellanto QC to the decision of Neilson DCJ in R v Rustom; R v Vernon [2017] NSWDC 245 which involved the supply of 355 grams of cocaine. After a 25% discount for the plea of guilty and taking into account the matters on the Form 1 and…
Sponberg v R [2017] NSWCCA 120
Citation 5 (Para 32)

…officers, given the evidence to which I have referred. The Crown summarised its position in reference to a number of factors set out in Sponberg v R [2017] NSWCCA 120 noting that there was a substantial quantity of drugs involved, of mostly high purity and there were multiple supplies. The offender was able to supp…
Sharma v R [2017] NSWCCA 85
Citation 6 (Para 35)

…me to make a finding as to where it sits in a scale of objective seriousness, but it is at the very lowest end of the range, in my view ( Sharma v R [2017] NSWCCA 85 at [63], per RA Hulme J).…
Giang v R [2017] NSWCCA 25
Citation 7 (Para 31)

…Picking up on that vein Latham J said in Giang v R [2017] NSWCCA 25,…
B v R [2015] NSWCCA 314
Citation 8 (Para 48)

…The case of B v R [2015] NSWCCA 314 to which reference has already been made was an appeal from a decision of Berman DCJ. It involved the supply of 996 grams of methylamphetamine an amount that almost surmounts the large commercial quantity. The supply was for $235,000 and the offender received $2,700 of that. He ha…
Williams v The Queen [2014] NSWCCA 57
Citation 9 (Para 50)

…In Williams v R [2014] NSWCCA 57 , an appeal against a sentence imposed by Wells DCJ was dismissed. After a 40% discount for the plea and assistance, the sentence of six years, with three years nine months non-parole period was imposed for the supply of 392 grams of cocaine for a total of $107,000. The offender’s r…
AB v R [2013] NSWCCA 273
Citation 10

…cking Act 1985 (NSW) Firearms Act 1996 (NSW) Crimes Act 1990 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: AB v R [2013] NSWCCA 273 B v R [2015] NSWCCA 314 Blair v R [2005] NSWCCA 78 Do v R [2008] NSWCCA 34 Elhassan v R [2018] NSWCCA 118 Giang v R [2017] NSWCCA 25 Greentree v R [2018] NSWCCA 277 Mu…
Parris v R [2013] NSWCCA 5
Citation 11 (Para 44)

…In Parris v The Queen [2013] NSWCCA 5, the Court dismissed an appeal from a sentence imposed by Finnane DCJ which involved supply of 714 grams of cocaine with six matters on a Form 1. After a 12.5% discount for a plea of guilty his Honour imposed a sentence of six years and one month with a two years and six month…
R v Petrovski; R v Abdallah; R v Atanovski [2012] NSWDC 168
Citation 12 (Para 45)

…I have had regard to the sentences imposed by Berman DCJ in the matters of R v Petrovski; R v Abdallah; R v Atanovski [2012] NSWDC 168 but the factual circumstances in the subjective cases are not of sufficient relevance to be of any great assistance in this matter. Reference is also made by Mr Bellanto QC to the d…
R v Louie Pucariello [2012] NSWDC 70
Citation 13 (Para 43)

…In R v Pucariello [2012] NSWDC 70, Haesler DCJ dealt with a charge of commercial supply of 320 grams of cocaine. The offender in that case had a prior term of imprisonment for drugs. There was a money laundering charge involving $1.5 million and after a 12.5% discount for a plea of guilty, his Honour imposed a sen…
Do, Van Nghiem v The Queen [2008] NSWCCA 34
Citation 14 (Para 51)

…so reviewed a number of cases to which reference was made in the submissions, namely, R v Dang [2005] NSWCCA 430 , R v Shi [2004] NSWCCA 135 , Do v R [2008] NSWCCA 34 , R v Mendez [2005] NSWCCA 246 and Blair v R [2005] NSWCCA 78 and I have had regard to the summary of those matters set out in Johnson J’s remarks.…
Mulato v R [2006] NSWCCA 282
Citation 15 (Para 40)

…I take account, as Mr Bellanto QC submits, of the significant period in custody to date in the way described by Adams J in Mulato v R [2006] NSWCCA 282, namely that remand prisoners are held in maximum security prisons and many of the programs available to the sentenced prisoners are not available to them and where…
R v Dang [2005] NSWCCA 430
Citation 16 (Para 51)

…015] NSWCCA 314 to which I have referred, Johnson J, also reviewed a number of cases to which reference was made in the submissions, namely, R v Dang [2005] NSWCCA 430 , R v Shi [2004] NSWCCA 135 , Do v R [2008] NSWCCA 34 , R v Mendez [2005] NSWCCA 246 and Blair v R [2005] NSWCCA 78 and I have had regard to the summ…
R v Krstic [2005] NSWCCA 391
Citation 17 (Para 35)

…As to the firearm offence, as Latham J said in R v Krstic [2005] NSWCCA 391, the legislative policy reflected in the maximum penalty of 14 years is to deter and punish the possession of firearms. The Crown concedes that while it looked like a standard pistol, it is accepted that it was not connected with the drug su…
R v Mendez [2005] NSWCCA 246
Citation 18 (Para 51)

…to which reference was made in the submissions, namely, R v Dang [2005] NSWCCA 430 , R v Shi [2004] NSWCCA 135 , Do v R [2008] NSWCCA 34 , R v Mendez [2005] NSWCCA 246 and Blair v R [2005] NSWCCA 78 and I have had regard to the summary of those matters set out in Johnson J’s remarks.…
R v Taouk [2005] NSWCCA 155
Citation 19 (Para 30)

…As the Crown points out there is a passage from the judgment of Badger-Parker J R v Taouk (1992) 65 A Crim R 387 which is often referred to in these cases where his Honour said,…
R v Blair [2005] NSWCCA 78
Citation 20 (Para 51)

…he submissions, namely, R v Dang [2005] NSWCCA 430 , R v Shi [2004] NSWCCA 135 , Do v R [2008] NSWCCA 34 , R v Mendez [2005] NSWCCA 246 and Blair v R [2005] NSWCCA 78 and I have had regard to the summary of those matters set out in Johnson J’s remarks.…
R v Shi [2004] NSWCCA 135
Citation 21 (Para 51)

…ave referred, Johnson J, also reviewed a number of cases to which reference was made in the submissions, namely, R v Dang [2005] NSWCCA 430 , R v Shi [2004] NSWCCA 135 , Do v R [2008] NSWCCA 34 , R v Mendez [2005] NSWCCA 246 and Blair v R [2005] NSWCCA 78 and I have had regard to the summary of those matters set out…
R v Chan [1999] NSWCCA 103
Citation 22 (Para 29)

…the significance of the fact that the drugs supplied to undercover police would not be disseminated into the community. As the Court said in R v Chan [1999] NSWCCA 103 at [21],…
Mill v The Queen [1988] HCA 70
Citation 23

…the community recognised. I must look at the totality of the criminal behaviour and ask what is the appropriate sentence for all that was done ( Mill (1998) 166 CLR 59 at 63)…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 5)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 2)
Firearms Act 1996 (TAS)
1 mention (from Para 3)

Medium Neutral Citation:	R v Achmar [2018] NSWDC 461
Hearing dates:	30 November 2018
Date of orders:	30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 3 years, 8 months with a 2 year non-parole period: at [53].
Catchwords:	SENTENCING – multiple offences – supply commercial quantity of prohibited drug – possess unregistered firearm – Form 1 matter – participate in criminal group – guilty plea – general deterrence – expression of remorse – low likelihood of reoffending
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Crimes Act 1990 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	AB v R [2013] NSWCCA 273 B v R [2015] NSWCCA 314 Blair v R [2005] NSWCCA 78 Do v R [2008] NSWCCA 34 Elhassan v R [2018] NSWCCA 118 Giang v R [2017] NSWCCA 25 Greentree v R [2018] NSWCCA 277 Mulato v R [2006] NSWCCA 282 Parente v R [2017] NSWCCA 284 Parris v The Queen [2013] NSWCCA 5 R v Chan [1999] NSWCCA 103 R v Dang [2005] NSWCCA 430 R v DW (2012) 221 A Crim R 63 R v Krstic [2005] NSWCCA 391 R v Mendez [2005] NSWCCA 246 R v Petrovski; R v Abdallah; R v Atanovski [2012] NSWDC 168 R v Pucariello [2012] NSWDC 70 R v Rustom; R v Vernon [2017] NSWDC 245 R v Shi [2004] NSWCCA 135 R v Taouk (1992) 65 A Crim R 387 Sponberg v R [2017] NSWCCA 120 Williams v R [2014] NSWCCA 57
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Charbil Achmar (Offender)
Representation:	Mr H Bates (Crown) Mr A Bellanto QC (Counsel for the accused)
File Number(s):	2017/74389