R v Ali

Case [2022] NSWDC 699 13 December 2022

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District Court

New South Wales

Medium Neutral Citation: R v ALI [2022] NSWDC 699
Hearing dates: 12 December 2022
Decision date: 13 December 2022
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Special circumstances found – 1st time in custody, need for supervised assistance on parole to reintegrate into the community in a lawful manner.
Sentenced to a term of imprisonment for 5 years and 4 months with a non-parole period of 3 years to commence on 18 February 2022 and to expire on 17 February 2025, and a balance of term of 2 years and 4 months to commence on 18 February 2025 and to expire on 17 June 2027.
Eligible for release to parole on 17 February 2025.

Catchwords:
CRIMINAL - sentence - knowingly take part in the cultivation of prohibited plants, not less than the large commercial quantity (350 cannabis plants) – limited evidence as to role of offender - major commercial enterprise having as its objective the deliberate cultivation of prohibited drugs on a very large scale for financial gain - moral culpability – objective seriousness – general and specific deterrence - subjective matters

Legislation Cited:
Crimes (Sentencing Procedure) Act1999
Drugs Misuse and Trafficking Act 1985

Cases Cited:
Imbornone v R [2017] NSWCCA 144
Nguyen v R [2011] 208 A Crim R 432
R v Chu; R v Tang [2021] NSWDC 768
R v Giammaria [2006] NSWCCA 63
R v McCudden; R v Doolan; R v S Worth; R v R Worth; R v Trejbal [2021] NSWDC 607
R v Shi [2004] NSWCCA 135
R v Tran [2017] NSWDC 397
Tran v R [2018] NSWCCA 220

Category: Sentence
Parties: Rex
Sam ALI
Representation:
Counsel:
ODPP: Ms K Stanley
Defence: Mr M Neil KC
Solicitors:
ODPP: Ms E Stanley
Defence: Abbas Jacobs Lawyers
Mr M Abbas, Mr K Agar, Mr S Ahmed

File Number(s): 2021/00048189

JUDGMENT

HIS HONOUR: In this matter, Sam Ali appears for sentence in respect of a single offence of knowingly take part in the cultivation of prohibited plants, namely, 350 cannabis plants, which is not less than the large commercial quantity applicable to that prohibited plant, contrary to s 23(2)(a) Drugs Misuse and Trafficking Act 1985. The maximum penalty provided for such an offence is 20 years’ imprisonment and/or a fine of 5,000 penalty units, and there is a relevant standard non-parole period provided of ten years’ imprisonment.
The offender entered a plea of guilty on 19 October 2022 at the Sydney District Court. The offence occurred on 28 March 2020, and he was arrested on 19 February 2021. Having been arrested on 19 February 2021 he was in custody until being granted bail in the Supreme Court on 15 April 2021, that is a period of 56 days.
He was arrested again on 15 April 2022 in respect of unrelated matters which are listed for summary hearing on 17 April next year at the Coonabarabran Local Court. He was bail-refused for those matters and this offence since that date.
Although…

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 Ali

Details

AGLC: R v Ali [2022] NSWDC 699
Case: [2022] NSWDC 699
Decision Date: 13 December 2022

CaseChat Overview and Summary

In the case of R v Ali, the defendant was convicted of knowingly participating in the cultivation of prohibited plants, specifically 350 cannabis plants, which exceeded the large commercial quantity threshold. The matter was heard and determined in the relevant Australian court. The primary dispute centred on the extent of the defendant's involvement in the cultivation operation and the appropriate sentence to be imposed.

The court was tasked with deciding several legal issues, including the degree of the defendant's culpability given the limited evidence as to their specific role in the large-scale drug cultivation enterprise. The court also had to consider the objective seriousness of the offence, the principles of general and specific deterrence, and the defendant's need for supervised assistance on parole to facilitate their reintegration into the community in a lawful manner. Additionally, the court assessed the defendant's personal circumstances, such as being a first-time offender and their need for assistance upon release from custody.

In delivering the judgment, the court found that the evidence, while limited, sufficiently demonstrated the defendant's involvement in a major commercial enterprise aimed at cultivating prohibited drugs on a large scale for financial gain. The court acknowledged the defendant's moral culpability and the objective seriousness of the crime. In terms of sentencing, the court imposed a term of imprisonment for 5 years and 4 months, with a non-parole period of 3 years. The balance of the term was set to 2 years and 4 months, with eligibility for parole release on 17 February 2025. The special circumstances considered included the defendant's first-time status in custody and their need for supervised assistance upon release to prevent reoffending.

The final orders of the court were that the defendant be convicted and sentenced to the specified term of imprisonment, with the non-parole period and parole eligibility dates clearly outlined.

Orders

Orders of the court

Convicted.

Special circumstances found – 1st time in custody, need for supervised assistance on parole to reintegrate into the community in a lawful manner.

Sentenced to a term of imprisonment for 5 years and 4 months with a non-parole period of 3 years to commence on 18 February 2022 and to expire on 17 February 2025, and a balance of term of 2 years and 4 months to commence on 18 February 2025 and to expire on 17 June 2027.

Eligible for release to parole on 17 February 2025.

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

AGLC Citation

R v Ali [2022] NSWDC 699

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Cases cited in this decision · 18 of 18 shown

R v Chu; R v Tang
[2021] NSWDC 768 Para 61

…I have also had regard to the cases referred to in the written submissions on behalf of the offender, which were referred to as Tang [2021] NSWDC 768, involving 1,000 plants and Trejbal [2021] NSWDC 607, involving 951 plants. Those cases should be more accurately referred to as R v Chu, R v Tang [2021] NSWDC 768 an…
R v McCudden; R v Doolan; R v S Worth; R v R Worth; R v Trejbal
[2021] NSWDC 607 Para 61

…referred to in the written submissions on behalf of the offender, which were referred to as Tang [2021] NSWDC 768, involving 1,000 plants and Trejbal [2021] NSWDC 607, involving 951 plants. Those cases should be more accurately referred to as R v Chu, R v Tang [2021] NSWDC 768 and R v McCudden; R v Doolan; R v S Wo…
Tran v R
[2018] NSWCCA 220 Para 60

…large commercial quantities, in particular, in respect of my own decision in R v Tran [2017] NSWDC 397 which was appealed and dealt with in Tran v R [2018] NSWCCA 220. That involved considering the sentence for an individual whose case was that he had performed the role of arranging the lease of premises in respect…
Imbornone v R
[2017] NSWCCA 144 Para 44

…t of Criminal Appeal has frequently said that untested out of court statements made to third parties should be treated with caution. In Imbornone v R [2017] NSWCCA 144 at [55], they stated;…
Van Zwam v R
[2017] NSWCCA 127

…idence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127). Generally, the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence…
R v Tran, Tony
[2017] NSWDC 397 Para 60

…relation to matters involving cultivation by enhanced means of large commercial quantities, in particular, in respect of my own decision in R v Tran [2017] NSWDC 397 which was appealed and dealt with in Tran v R [2018] NSWCCA 220. That involved considering the sentence for an individual whose case was that he had…
Pfitzner v R
[2010] NSWCCA 314 Para 33

…express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue. Pfitzner v R [2010] NSWCCA 314 at [33]. 4. If an offender appearing for sentence wishes to place evidence before the Court which is designed to minimise his or her criminality or other…
Butters v R
[2010] NSWCCA 1

…to be given to such statements to have regard to the fact an offender did not give evidence and was not subject to cross-examination. Butters v R [2010] NSWCCA 1 at 18. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-e…
Munro v R
[2006] NSWCCA 350

…esigned to minimise his or her criminality or otherwise mitigate penalty, it should be done directly and in a form which can be tested. Munro v R [2006] NSWCCA 350 at 17 to 19. 5. Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge…
Giammaria v Regina; Karagiannis v Regina
[2006] NSWCCA 63 Para 58

…In R v Giammaria [2006] NSWCCA 63, in the context of “seriously culpable” conduct by two non-principals in cultivation offences, Sully J said at 15:…
GAS v The Queen
[2004] HCA 22

…t limitations as to a judge’s capacity to find potentially relevant facts in a given case: GAS v The Queen; SJK v The Queen [2004] 217 CLR 198; [2004] HCA 22. As the High Court made clear in Olbrich v The Queen [1999] 199 CLR 270; [1999] HCA 54 matters in mitigation must be established on the balance of probabil…
R v Shi
[2004] NSWCCA 135 Para 56

…In R v Shi [2004] NSWCCA 135 Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, emphasised at 34 the importance of giving consideration to:…
R v Elfar
[2003] NSWCCA 358

…uch evidence is untested and may be deserving of little or no weight, R v Palu [2002] NSWCCA 381 2002 134 A Crim R 174 at 185 40 to 41, R v Elfar [2003] NSWCCA 358 at 25, R v McGourty [2002] NSWCCA 335 at 24 to 25. 3. It is open to a Court in assessing the weight to be given to such statements to have regard to the…
R v Palu
[2002] NSWCCA 381

…in court should all be treated with considerable circumspections. Such evidence is untested and may be deserving of little or no weight, R v Palu [2002] NSWCCA 381 2002 134 A Crim R 174 at 185 40 to 41, R v Elfar [2003] NSWCCA 358 at 25, R v McGourty [2002] NSWCCA 335 at 24 to 25. 3. It is open to a Court in assessi…
R v McGourty
[2002] NSWCCA 335

…serving of little or no weight, R v Palu [2002] NSWCCA 381 2002 134 A Crim R 174 at 185 40 to 41, R v Elfar [2003] NSWCCA 358 at 25, R v McGourty [2002] NSWCCA 335 at 24 to 25. 3. It is open to a Court in assessing the weight to be given to such statements to have regard to the fact an offender did not give evidence…
R v Qutami
[2001] NSWCCA 353

…in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight, R v Qutami [2001] NSWCCA 353 at 58-59. 2. Statements to doctors, psychologists, psychiatrists and authors of pre-sentence reports and others or assertions contained in letters writte…
R v Harrison
[2001] NSWCCA 79

…a tangible expression of contrition “to treat this evidence with anything but scepticism represents a triumph over experience”. R v Harrison [2001] NSWCCA 79: [2002] 121 A Crim R 380 at 44.…
R v Olbrich
[1999] HCA 54

…se: GAS v The Queen; SJK v The Queen [2004] 217 CLR 198; [2004] HCA 22. As the High Court made clear in Olbrich v The Queen [1999] 199 CLR 270; [1999] HCA 54 matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. T…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 65)
Drugs Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v ALI [2022] NSWDC 699
Hearing dates:	12 December 2022
Decision date:	13 December 2022
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – 1st time in custody, need for supervised assistance on parole to reintegrate into the community in a lawful manner. Sentenced to a term of imprisonment for 5 years and 4 months with a non-parole period of 3 years to commence on 18 February 2022 and to expire on 17 February 2025, and a balance of term of 2 years and 4 months to commence on 18 February 2025 and to expire on 17 June 2027. Eligible for release to parole on 17 February 2025.
Catchwords:	CRIMINAL - sentence - knowingly take part in the cultivation of prohibited plants, not less than the large commercial quantity (350 cannabis plants) – limited evidence as to role of offender - major commercial enterprise having as its objective the deliberate cultivation of prohibited drugs on a very large scale for financial gain - moral culpability – objective seriousness – general and specific deterrence - subjective matters
Legislation Cited:	Crimes (Sentencing Procedure) Act1999 Drugs Misuse and Trafficking Act 1985
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Nguyen v R [2011] 208 A Crim R 432 R v Chu; R v Tang [2021] NSWDC 768 R v Giammaria [2006] NSWCCA 63 R v McCudden; R v Doolan; R v S Worth; R v R Worth; R v Trejbal [2021] NSWDC 607 R v Shi [2004] NSWCCA 135 R v Tran [2017] NSWDC 397 Tran v R [2018] NSWCCA 220
Category:	Sentence
Parties:	Rex Sam ALI
Representation:	Counsel: ODPP: Ms K Stanley Defence: Mr M Neil KC Solicitors: ODPP: Ms E Stanley Defence: Abbas Jacobs Lawyers Mr M Abbas, Mr K Agar, Mr S Ahmed
File Number(s):	2021/00048189