R v Bakhos Jalalaty - [2010] NSWSC 1561

CITATION: R v Bakhos Jalalaty [2010] NSWSC 1561

HEARING DATE(S): 17 May 2010, 6 July 2010, 4 August 2010, 16 August 2010, 17 August 2010, 29 November 2010, 30 November 2010, 20 December 2010

JUDGMENT DATE :
20 December 2010

JUDGMENT OF: James J at 1

DECISION: I sentence you to imprisonment for 10 years to date from 2 June 2008. I fix a non-parole period of 6 years to date from 2 June 2008. The earliest date on which you will be eligible for release on parole will be 2 June 2014. In accordance with s 21E of the Crimes Act I state that the sentence and the non-parole period have been reduced because of your promises of future assistance and I specify that but for the promises of future assistance the sentence would have been one of imprisonment for 12 years with a non-parole period of 7 years 2 months.

LEGISLATION CITED: Commonwealth Criminal Code - ss 307.1, 307.2, 307.11
Commonwealth Crimes Act Part 1B - S 16A(1), (2), 21E

CATEGORY: Sentence

CASES CITED: R v Sukkar (2007) 172 A Crim R 151

PARTIES: Regina
Bakhos Jalalaty

FILE NUMBER(S): SC 2009/7108

COUNSEL: T Game SC, H Dhanji SC - Crown
C Steirn SC, B Clark - Offender

SOLICITORS: Commonwealth DPP - Crown
O'Brien Lawyers - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST
JAMES J
MONDAY 20 DECEMBER 2010
2009/7108 REGINA v Bakhos JALALATY

REMARKS ON SENTENCE

1 HIS HONOUR: On 17 May 2010 Bakhos Jalalaty pleaded guilty before me to a charge that between 1 June 2006 and 2 June 2008 he conspired with Mark William Standen and others to import a substance, intending to use or believing that another person intended to use the substance to manufacture a controlled drug, the substance being a border-controlled precursor namely pseudoephedrine and the quantity being a commercial quantity,

2 The charge is a charge of conspiring to commit an offence under s 307.11 of the Commonwealth Criminal Code, for which the maximum penalty is imprisonment for 25 years or a fine of 5,000 penalty units or both.

3 The proceedings for the sentencing of the prisoner have been protracted. The proceedings on sentence commenced on 17 May 2010, were mentioned on a number of occasions and were continued on 16 August, 17 August, 29 November and 30 November. On 30 November the proceedings were stood over to today for delivery of these remarks on sentence and the formal passing of sentence.

4 Mark William Standen who is referred to in the charge against the prisoner has also been charged with a similar offence. Standen has pleaded not guilty to that charge and has maintained his plea of not guilty. A trial of Mr Standen on the charge of conspiring to commit an offence under s 307.11 of the Code and on other charges has been fixed to commence on 2 February 2011.

5 The evidence in the proceedings on sentence included:-

For…

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.

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Details

Case: [2010] NSWSC 1561
Decision Date: 20 December 2010

CaseChat Overview and Summary

Bakhos Jalalaty pleaded guilty to a charge of conspiring to import a border-controlled precursor, pseudoephedrine, with the intent to manufacture a controlled drug. The conspiracy involved a commercial quantity of pseudoephedrine and occurred between 1 June 2006 and 2 June 2008. The offence carries a maximum penalty of 25 years imprisonment. The key legal issues were the appropriate weight to give Jalalaty's late plea of guilty, his offer of assistance to law enforcement authorities, and the subjective factors relating to Jalalaty. The court found that Jalalaty's plea of guilty was late and did not warrant a significant discount. Although Jalalaty had provided and promised to provide assistance to law enforcement authorities, the court considered the value of this assistance and found it warranted a discount of approximately 40%. The court also considered Jalalaty's background, his role in the conspiracy, and the need for general deterrence in drug offences. The court ultimately sentenced Jalalaty to imprisonment for 10 years with a non-parole period of 6 years, reflecting the seriousness of the offence, the degree of planning and the potential profit. The sentence was reduced due to Jalalaty's promises of future assistance.

Orders