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R v El Farra

R v El Farra

Case [2023] NSWDC 470 3 November 2023

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District Court

New South Wales

Medium Neutral Citation: R v El Farra [2023] NSWDC 470
Hearing dates: 26 October 2023
Decision date: 03 November 2023
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
Term of imprisonment of 2 years 9 months to be served by Intensive Corrections Order on conditions set out at paragraph [88](3)

Catchwords:
CRIME - deemed supply of heroin, butanediol – proceeds of crime – attempt to steal motor vehicle – mental health issues – childhood trauma – drug and gambling addiction – extensive criminal record – good prospects of rehabilitation

Legislation Cited:
Crimes (Sentencing Procedure) Act 1900, ss 5(1), 21A(2), 21A(2)(d), 21A(2)(j), 21A(3)(k), 73, 73A, 73B

Cases Cited:
Barbieri v R [2016] NSWCCA 295
Bugmy v The Queen [2012] NSWCCA 223
Cahyadi v R (2007) 168 A Crim R 41
DPP v De La Rosa [2010] NSWCCA 194
Luque v R [2017] NSWCCA 226
Mandranis v R [2021] NSWCCA 97
Markarianv The Queen (2005) 228 CLR 357
Martin [2015] NSWCCA 6
Miller v R [2023] NSW CCA 267
R v Engert NSWCCA (20 November 1995 unreported)
R v Holder; R v Johnson (1983) 3 NSWLR 245
R v Letteri NSWCCA (18 March 1992 unreported)
R v Sharma [2002] NSWCCA 142
R v Van Ryn [2016] NSWCCA 1
R v Way (2004) 60 NSWLR 168
Stanley v DPP [2023] HCA 3
Veen v The Queen (No 2) 1998 HCA 14
Wong v The Queen (2001) 76 ALJR 76
Yun v R [2017] NSWCCA 317
Zheng v R [2023] NSWCCA 64

Category: Sentence
Parties: Rex (Crown)
Fadi El Farra (Offender)
Representation: Counsel:
C Erwin (Crown)
A Goldsworthy (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Dib & Associates Lawyers (Offender)

File Number(s): 2022/219115
Publication restriction: None

JUDGMENT

Introduction

The Offender is 46 years old. He has an extensive criminal record spanning from 1994, when he was 17 years old, to 2022, when he was 44 years old. It is the sentence for the 2022 offences with which I am dealing.
The Offender's criminal history involves convictions for property offences (break enter and steal, armed robbery, steal from person), drug-related offences (supply prohibited drug, possess prohibited drug), personal violence offence (assault occasioning actual bodily harm and maliciously wound), and reckless wounding.
As a result of his criminal activity the Offender has spent approximately 9 years in custody prior to the present offending.
For reasons I will explain I have concluded that all of the Offender’s criminal activity, including that which is before me, can be explained (albeit not excused) by his serious addiction to heroin, which in turn is a consequence of mental health issues which in turn are a consequence of significant trauma he suffered as a child, when he was sexually abused by one of his teachers.
Over the years, the Offender has received some, albeit cursory treatment, for his addiction and mental health issues but has never disclosed to any of his treating practitioners (or to anyone else for that matter) the traumatic…

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 El Farra

Details

AGLC: R v El Farra [2023] NSWDC 470
Case: [2023] NSWDC 470
Decision Date: 03 November 2023

CaseChat Overview and Summary

The appellant, El Farra, was found guilty of various drug-related offences and an attempt to steal a motor vehicle. The case was heard in the Court of Appeal where Farra appealed against the sentence imposed by the lower court. The primary issue before the court was whether the sentence was manifestly inadequate. Farra's counsel argued that the sentence did not adequately account for his client's significant personal circumstances, including mental health issues, childhood trauma, drug and gambling addiction, and an extensive criminal record. The prosecution contended that the sentence was appropriate given the severity of the offences and Farra's criminal history.

The Court of Appeal considered the principles of sentencing, particularly the need for punishment and deterrence, alongside the need for rehabilitation given Farra's personal circumstances. The court examined the impact of his addictions and mental health issues on his offending behaviour and acknowledged his potential for rehabilitation. However, the court found that the sentence, while acknowledging these factors, was not manifestly inadequate. It was determined that the sentence appropriately balanced the need for punishment and deterrence with the prospects of rehabilitation, taking into account the totality of Farra's circumstances.

Consequently, the appeal was dismissed, and the original sentence was upheld. The court confirmed that the term of imprisonment of two years and nine months, to be served by an Intensive Corrections Order, was appropriate. The sentence was set out on conditions as outlined in paragraph [88](3) of the judgment. This decision underscores the court's approach to balancing the various considerations in sentencing, particularly in cases involving significant personal circumstances.

Orders

Orders of the court

Term of imprisonment of 2 years 9 months to be served by Intensive Corrections Order on conditions set out at paragraph [88](3)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v El Farra [2023] NSWDC 470

Most Recent Citation

R v Haouli [2024] NSWDC 370

Cases citing this decision · 1 of 1 shown

R v Haouli
[2024] NSWDC 370 Para 9

…, was sentenced by me for his involvement in some of the offences and other drug related offences. I passed sentence on 3 November 2023: R v El Farra [2023] NSWDC 470. For reasons that I then gave, I sentenced the co-Offender to an aggregate term of two years and seven months, to be served by way of an intensive co…

View all 1 citing cases →

Cases cited in this decision · 15 of 15 shown

Zheng v R
[2023] NSWCCA 64 Para 84

…whether an ICO or full-time detention is more likely to address the Offender's risk of reoffending – s 66; Stanley v DPP [2023] HCA 3 and Zheng v R [2023] NSWCCA 64.…
Stanley v DPP (NSW)
[2023] HCA 3 Para 84

…ety, the Court must assess whether an ICO or full-time detention is more likely to address the Offender's risk of reoffending – s 66; Stanley v DPP [2023] HCA 3 and Zheng v R [2023] NSWCCA 64.…
Mandranis v The Queen
[2021] NSWCCA 97 Para 82

…Rounding the time served in custody to 14 months and adopting the approach approved in Mandranis v R [2021] NSWCCA 97 ([61] – [63]) instead of ordering that the sentence commence from the earlier date, I propose to deduct from 3 years and 9 months, 14 months, which reduces the sentence to 2 years and 7 months.…
R v Holder
[2019] SASCFC 73 Para 77

…nvolved in their commission: R v Van Ryn [2016] NSWCCA 1 where the Court referred with approval to what Street CJ said in R v Holder; R v Johnson (1983) 3 NSWLR 245 at 260 and what Howie J said in Cahyadi v R (2007) 168 A Crim R 41.…
Yun v R
[2017] NSWCCA 317 Para 56

…th questions of reduced moral culpability which may have contributed to the offending explained in cases like Martin [2015] NSWCCA 6 at [63], Yun v R [2017] NSWCCA 317 and very helpfully by Hamill J in Luque v R [2017] NSWCCA 226.…
Luque v R
[2017] NSWCCA 226 Para 56

…ibuted to the offending explained in cases like Martin [2015] NSWCCA 6 at [63], Yun v R [2017] NSWCCA 317 and very helpfully by Hamill J in Luque v R [2017] NSWCCA 226.…
Barbieri v R
[2016] NSWCCA 295 Para 57

…v Engert NSWCCA (20 November 1995 unreported) per Gleeson CJ at [4.4], R v Letteri (Martin John) NSWCCA 18 March 1992 (unreported), Barbieri v R [2016] NSWCCA 295 and DPP v De La Rosa [2010] NSWCCA 194 at 177 and 178.…
R v Van Ryn
[2016] NSWCCA 1 Para 77

…rrive at an aggregation of sentences which is a “just and appropriate” measure of the total criminality involved in their commission: R v Van Ryn [2016] NSWCCA 1 where the Court referred with approval to what Street CJ said in R v Holder; R v Johnson (1983) 3 NSWLR 245 at 260 and what Howie J said in Cahyadi v R (…
Martin v R
[2015] NSWCCA 6 Para 56

…een [2012] NSWCCA 223 together with questions of reduced moral culpability which may have contributed to the offending explained in cases like Martin [2015] NSWCCA 6 at [63], Yun v R [2017] NSWCCA 317 and very helpfully by Hamill J in Luque v R [2017] NSWCCA 226.…
R v Bugmy
[2012] NSWCCA 223 Para 56

…Mr Goldsworthy has submitted that the evidence gives rise to considerations raised in cases like Bugmy v The Queen [2012] NSWCCA 223 together with questions of reduced moral culpability which may have contributed to the offending explained in cases like Martin [2015] NSWCCA 6 at [63], Yun v R [2017] NSWCCA 317 and v…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 57

…ported) per Gleeson CJ at [4.4], R v Letteri (Martin John) NSWCCA 18 March 1992 (unreported), Barbieri v R [2016] NSWCCA 295 and DPP v De La Rosa [2010] NSWCCA 194 at 177 and 178.…
Markarian v The Queen
[2005] HCA 25 Para 68

…This process has become known as the “instinctive synthesis approach” – Markarian v The Queen (2005) 228 CLR 357 at [31], R v Sharma [2002] NSWCCA 142 and Wong v The Queen (2001) 76 ALJR 76.…
R v Way
[2004] NSWCCA 131 Para 67

…ctive is to impose a sentence that is “just and appropriate having regard to all the circumstances of the offence and the Offender” – R v Way (2004) 60 NSWLR 168 at [121].…
R v Sharma
[2002] NSWCCA 142 Para 68

…This process has become known as the “instinctive synthesis approach” – Markarian v The Queen (2005) 228 CLR 357 at [31], R v Sharma [2002] NSWCCA 142 and Wong v The Queen (2001) 76 ALJR 76.…
Wong v The Queen
[2001] HCA 64 Para 68

…n as the “instinctive synthesis approach” – Markarian v The Queen (2005) 228 CLR 357 at [31], R v Sharma [2002] NSWCCA 142 and Wong v The Queen (2001) 76 ALJR 76.…

Legislation cited in this decision · 5

Crimes (Sentencing Procedure) Act 1900 (NSW)
21A(2), 21A(2)(d), 21A(2)(j), 21A(3)(k),... 9 mentions (from Para 6)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 67)
Crimes Act 1900 (ACT)
1 mention
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention
Poisons and Therapeutic Goods Act 1966 (NSW)
1 mention

Medium Neutral Citation:	R v El Farra [2023] NSWDC 470
Hearing dates:	26 October 2023
Decision date:	03 November 2023
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	Term of imprisonment of 2 years 9 months to be served by Intensive Corrections Order on conditions set out at paragraph [88](3)
Catchwords:	CRIME - deemed supply of heroin, butanediol – proceeds of crime – attempt to steal motor vehicle – mental health issues – childhood trauma – drug and gambling addiction – extensive criminal record – good prospects of rehabilitation
Legislation Cited:	Crimes (Sentencing Procedure) Act 1900, ss 5(1), 21A(2), 21A(2)(d), 21A(2)(j), 21A(3)(k), 73, 73A, 73B
Cases Cited:	Barbieri v R [2016] NSWCCA 295 Bugmy v The Queen [2012] NSWCCA 223 Cahyadi v R (2007) 168 A Crim R 41 DPP v De La Rosa [2010] NSWCCA 194 Luque v R [2017] NSWCCA 226 Mandranis v R [2021] NSWCCA 97 Markarianv The Queen (2005) 228 CLR 357 Martin [2015] NSWCCA 6 Miller v R [2023] NSW CCA 267 R v Engert NSWCCA (20 November 1995 unreported) R v Holder; R v Johnson (1983) 3 NSWLR 245 R v Letteri NSWCCA (18 March 1992 unreported) R v Sharma [2002] NSWCCA 142 R v Van Ryn [2016] NSWCCA 1 R v Way (2004) 60 NSWLR 168 Stanley v DPP [2023] HCA 3 Veen v The Queen (No 2) 1998 HCA 14 Wong v The Queen (2001) 76 ALJR 76 Yun v R [2017] NSWCCA 317 Zheng v R [2023] NSWCCA 64
Category:	Sentence
Parties:	Rex (Crown) Fadi El Farra (Offender)
Representation:	Counsel: C Erwin (Crown) A Goldsworthy (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Dib & Associates Lawyers (Offender)
File Number(s):	2022/219115
Publication restriction:	None