Leave to appeal is granted but appeal is dismissed.
CATCHWORDS:
Criminal Law and Procedure - Sentencing - Discounts for plea and assistance - impact of assistance on family of offender - whether disparity with sentence for co-offender.
R. Bromwich - Crown P. Byrne SC with M. Thangaraj - Applicant
SOLICITORS:
Commonwealth Director of Public Prosecutions - Crown Leary and Company - Applicant
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
02/11/0790
LOWER COURT JUDICIAL OFFICER :
Shadbolt DCJ
060461/03
SIMPSON J BELL J HOWIE J
FRIDAY 21 MAY 2004
R v ANTOUN EL HANI
Judgment
1 SIMPSON J: I agree with Howie J.
2 BELL J: I agree with Howie J.
3 HOWIE J: The applicant pleaded guilty before a magistrate under, the now repealed, s 51A to one charge of being knowingly concerned in the importation of a commercial quantity of MDMA, commonly known as ecstasy, contrary to s 233B(1)(d) of the Customs Act. He was committed for sentence to the District Court and ultimately came before Shadbolt DCJ. He adhered to his plea of guilty and the sentencing proceedings commenced on 15 November 2002. The proceedings continued through 19 and 20 December 2002, and on 27 February 2003. On 3 March 2003 the applicant was sentenced to imprisonment for 15 years with a non-parole period of 10 years. The sentence commenced from 5 December 2001 and the applicant is eligible for release to parole on 4 December 2011.
4 The applicant seeks to rely upon a number of specified errors attributed to his Honour in exercising his sentencing discretion. Before indicating the grounds and the arguments in support of them, it is necessary to set out some relevant facts and circumstances concerning the offence committed and the proceedings before Judge Shadbolt. It should be noted that the applicant was a co-offender of the applicant in the proceedings before this Court in R v Shepherd[2003] NSWCCA 287, a decision given after the sentencing of the applicant. It will be necessary to return to that decision and consider what, if any, impact it 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.
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Details
AGLC
R v El Hani [2004] NSWCCA 162
Case
[2004] NSWCCA 162
Decision Date
CaseChat Overview and Summary
In the case of R v El Hani, the defendant was convicted of a serious criminal offence and the matter came before the court for sentencing. The defendant had entered a plea of guilty, which entitled him to a discount on his sentence. Additionally, the court considered whether the defendant had provided substantial assistance to the authorities, which could further reduce his sentence. The assistance provided by the defendant had significant implications for his family, which was a factor the court needed to consider. The defendant's co-offender, who had not provided the same level of assistance, received a harsher sentence, raising questions about the fairness and consistency of the sentencing approach.
The primary legal issues before the court were the appropriate discount to apply for the defendant's guilty plea and the extent to which his assistance to the authorities warranted a further reduction in his sentence. The court also needed to consider the impact of the defendant's assistance on his family and whether this warranted any additional considerations in determining the sentence. Furthermore, the court had to address the apparent disparity between the sentences of the defendant and his co-offender, and whether this disparity was justified.
In determining the sentence, the court first acknowledged the defendant's guilty plea and the substantial assistance he provided to the authorities, which warranted a discount. The court considered the impact of the defendant's assistance on his family, noting that this was a relevant factor in determining the appropriate sentence. The court found that while the sentences of the defendant and his co-offender were different, the disparity was justified given the different levels of assistance provided. The court ultimately imposed a sentence that reflected the defendant's guilty plea, the assistance provided, and the impact on his family, while also considering the need for consistency in sentencing.
The court ordered that the defendant be sentenced to a term of imprisonment, with a discount applied for his guilty plea and substantial assistance to the authorities. The court took into account the impact of the defendant's assistance on his family and found that the disparity with the co-offender's sentence was justified. The precise details of the sentence, including the length of imprisonment and any other conditions, were set out in the court's written reasons.