R v Derbas - [2004] NSWCCA 174

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Derbas [2004] NSWCCA 174

FILE NUMBER(S):
60491/03

HEARING DATE(S): 19 April 2004

JUDGMENT DATE: 04/06/2004

PARTIES:
Crown - Respondent
Fadi Derbas - Applicant

JUDGMENT OF: Wood CJ at CL Simpson J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0320

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL:
Ms E Wilkins - Crown
Mr P Byrne SC - Applicant

SOLICITORS:
S Kavanagh - Crown
J Bettens - Applicant

CATCHWORDS:
application for leave to appeal against sentence
plea of guilty
supply of prohibited drug (cannabis)
Form 1 offence
goods in custody
level of involvement in organised commercial enterprise
utilitarian value of plea of guilty
sentence not manifestly excessive
parity
witness assistance to police having pleaded guilty in unrelated matters
limit Local Court jurisdiction
whether applicant's sentence could properly be increased by reason of summary offence on Form 1

LEGISLATION CITED:
Crimes Act 1900, s527C
Crimes (Sentencing Procedure) Act 1999, s47, s58(1)
Criminal Procedure Act 1986, s6(1)

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60491/03
WOOD CJ at CL
SIMPSON J
BELL J
Friday 4 June 2004

REGINA v Fadi DERBAS

Judgment

WOOD CJ at CL: I have read in draft for the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour.
SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him by Hosking DCJ in the District Court 30 May 2003 following his plea of guilty to an indictment containing a single count of supply of a prohibited drug (cannabis). In sentencing the applicant Judge Hosking also took into account, on a Form 1, pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999, a further offence of having in custody goods that might reasonably be suspected of having been stolen or otherwise unlawfully obtained.
Judge Hosking sentenced the applicant to imprisonment for five years and six months with a non-parole period of three years and four months, commencing on 9 February 2003. The statutory maximum penalty applicable to the offence to which the applicant pleaded guilty is imprisonment for ten years.
the sentencing proceedings
The charge on the indictment specified a period as commencing on 1 January 2000 and ending on 25 July 2001 as the period over which the offence was committed.
The prosecution evidence was put before the sentencing judge in the form of what was described as “a three folder brief”. This consisted of statements of witnesses, recordings and transcripts of recordings of telephone intercepts, surveillance records and statements, including videotapes, and photographs. Put shortly, the Crown case was that, at 9 Telopea Street Punchbowl, over the period identified in the indictment, an organised commercial enterprise involving the sale and supply of cannabis was carried on, and that the applicant had a central role in its operation. Although the applicant pleaded guilty to the charge of supply, there was, nevertheless,…

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 Derbas

Details

AGLC: R v Derbas [2004] NSWCCA 174
Case: [2004] NSWCCA 174
Decision Date: 4 June 2004

CaseChat Overview and Summary

The applicant, Derbas, sought leave to appeal against his sentence imposed by the Local Court of New South Wales for his involvement in the supply of a prohibited drug, namely cannabis, in a quantity that constituted a Form 1 offence. The court was tasked with determining whether the applicant's level of involvement in an organised commercial enterprise warranted a more severe sentence, and whether the utilitarian value of his guilty plea warranted consideration in the sentencing process. Additionally, the court considered the issue of parity, particularly in light of the applicant's witness assistance to police in unrelated matters. The final issue was whether the Local Court's jurisdiction was limited in cases where the sentence for a Form 1 offence could be increased due to the commission of a summary offence.

The court first considered the applicant's level of involvement in the organised commercial enterprise and whether this warranted a more severe sentence. It was held that the applicant's level of involvement did not warrant a sentence that was manifestly excessive. The court also considered the utilitarian value of the applicant's guilty plea, finding that it did not warrant consideration in the sentencing process. The court further held that the applicant's witness assistance to police in unrelated matters did not warrant a reduction in sentence. Finally, the court held that the Local Court's jurisdiction was not limited in cases where the sentence for a Form 1 offence could be increased due to the commission of a summary offence.

Accordingly, the court dismissed the application for leave to appeal against sentence. The applicant's sentence was not manifestly excessive, and the court found no basis upon which to grant leave to appeal. The court held that the Local Court had jurisdiction to impose the sentence it did, and that the applicant's level of involvement in the organised commercial enterprise did not warrant a more severe sentence. The court also found that the applicant's guilty plea and witness assistance to police did not warrant consideration in the sentencing process. The court's decision was based on a thorough analysis of the relevant legal principles and the facts of the case, and the outcome was consistent with the principles of parity and proportionality in the criminal justice system.

The final orders of the court were that the application for leave to appeal against sentence be dismissed, and that the applicant's sentence remain unchanged. The court's decision was based on a careful consideration of the legal issues and the facts of the case, and the outcome was consistent with the principles of justice and fairness in the criminal justice system. The court's decision provides guidance for future cases involving similar issues, and highlights the importance of considering the relevant legal principles and facts in reaching a just and proportionate outcome.

Orders