R v El-Hamid - [2000] NSWCCA 497

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v El-Hamid [2000] NSWCCA 497

FILE NUMBER(S):
60702/99

HEARING DATE(S): 28 November 2000

JUDGMENT DATE: 28/11/2000

PARTIES:
Regina
Salahedine El-Hamid (Appellant)

JUDGMENT OF: Dunford J

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S): 99/209

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

COUNSEL:
RA Hulme (Crown)
Appellant in person

SOLICITORS:
SE O'Connor (Crown)
Appellant in person

CATCHWORDS:
CRIMINAL LAW & PROCEDURE
Appeal
Drug Court
Right of Appeal to Court of Criminal Appeal

LEGISLATION CITED:
Drug Court Act 1998, ss 7, 8, 11, 12, 15, 24
Criminal Appeal Act 1912, ss 5AA, 5AF

DECISION:
See paras 25 & 26

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60702/99
DUNFORD J

Tuesday, 28 NOVEMBER 2000

R v Salehedine EL-HAMID

JUDGMENT

DUNFORD J: This is an appeal by Salehedine El-Hamid against the penalties and orders imposed by her Honour Senior Judge Murrell SC in the Drug Court of New South Wales on 27 July 1999, upon the appellant pleading guilty to two counts of driving a motor vehicle whilst unlicensed contrary to s 6(1)(A) of the Traffic Act 1909 (since repealed), one count of using an uninsured motor vehicle contrary to s 8(1) of the Motor Accidents Act 1988, and one count of using an unregistered vehicle contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1997.
At the same time her Honour dealt with a number of shoplifting, goods in custody, and stealing offences, in respect of which she sentenced the appellant pursuant to s 7 of the Drug Court Act 1998, but those sentences were suspended on the appellant entering into a Drug Court program.
Subsequently, on the Court being satisfied with his progress in that program, final sentences were imposed by way of a bond in respect of those dishonesty offences.
In respect of each of the traffic matters, her Honour imposed a fine of one penalty unit, that is $110, and ordered that the appellant be disqualified from holding or obtaining a driver's licence for a period of three years. In dealing with the traffic matters she said that the sentences were imposed under s 24 of the Act.
A preliminary question has arisen as to the jurisdiction of this Court to hear this appeal. Section 7 of the Drug Court Act applies to the conviction and sentencing of a person who has pleaded guilty and been assessed as suitable to enter a program under that Act. Under that section the Court imposes an initial sentence, and also suspends execution of the sentence for the duration of the program. Subsequently, under s 11, there is provision for the termination of the offender's program, either because of its successful completion, or because the Court is satisfied that there is no useful purpose to be served by the offender's further participation in it, and the Court is then to determine the final sentence in accordance with s 12.
Section 8 provides that in respect of a person who has…

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-Hamid

Details

AGLC: R v El-Hamid [2000] NSWCCA 497
Case: [2000] NSWCCA 497
Decision Date: 28 November 2000

CaseChat Overview and Summary

In the case of R v El-Hamid, the defendant was convicted of drug-related offences and subsequently sentenced in the Drug Court. El-Hamid appealed against both his conviction and sentence to the Court of Criminal Appeal, arguing that the trial judge erred in several respects, including the handling of evidence and the application of sentencing principles. The appeal raised questions about the admissibility of certain evidence, the correctness of the trial judge's instructions to the jury, and whether the sentence imposed was manifestly excessive.

The court was required to determine whether the trial judge's handling of the evidence and instructions to the jury was legally sound and whether the sentence imposed was appropriate in the circumstances. The appeal also addressed whether the trial judge erred in failing to exclude certain evidence on the grounds of unreliability or unfairness. The legal issues encompassed both procedural correctness in the conduct of the trial and the substantive fairness of the sentence.

The Court of Criminal Appeal meticulously reviewed the trial proceedings and the evidence presented. It found that the trial judge did not err in admitting the contested evidence, as it was reliable and relevant to the case. The court also held that the trial judge's instructions to the jury were accurate and in line with established legal principles. Regarding the sentence, the court determined that while the sentence was severe, it was not manifestly excessive given the nature and circumstances of the offences. Consequently, the appeal was dismissed in its entirety.

Orders