R v El - Hassan - [2018] NSWDC 436

District Court

New South Wales

Medium Neutral Citation: R v El - Hassan [2018] NSWDC 436
Hearing dates: 16 November 2018
Date of orders: 16 November 2018
Decision date: 16 November 2018
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
1 For the offence of drive whilst disqualified on 27 April 2017 and the earlier offence of drive whilst disqualified, the offender is sentenced to imprisonment for two months.
2 For the offence of ongoing supply, the offender is sentenced to imprisonment. I set a non-parole period of 18 months and a head sentence of three years.
3 Dismiss the back-up offences on the s 166 certificate and make the forfeiture order by consent.

Catchwords: CRIMINAL LAW – Sentence – Form 1 – Ongoing drug supply – MDMA - Drive while disqualified – Breach of bonds - Proceeds of crime – Totality – Long standing drug use – Post traumatic stress disorder
Cases Cited: Butler v The Queen [2010] NSWCCA 264
Fong v R [2002] NSWCCA 320
Category: Sentence
Parties: The Crown
Mohammed El - Hassan
Representation: Counsel:
B Murray – The offender
Solicitors:
Director of Public Prosecutions – The Crown

File Number(s): 2017/357114

SENTENCE

HIS HONOUR: One important thing to note about offences of ongoing drug supply is that the maximum penalty that parliament has provided is the same as for offences of commercial drug supply. This reflects the concern that parliament has a concern shared by the courts, at the harm which street level dealers such as the offender cause through repeated ongoing supplies for financial gain.
The offender has pleaded guilty to an offence of ongoing drug supply. He asks that when I sentence him for that matter that I take into account a matter on a Form 1, that relating to $700 found in his possession which reflects the proceeds of crime. Given the nature of the primary offence, ongoing drug supply for financial gain, the Form 1 adds absolutely nothing to the criminality of Mr El-Hassan. The presence of the Form 1 matter affects the sentence that I will ultimately impose upon Mr El-Hassan not one bit. The presence of such Form 1 matters is a recent development. I have my doubts about its appropriateness in circumstances such as this as it can often lead judges into error.
Mr El-Hassan was a drug dealer, able to supply MDMA and on one occasion cocaine. He supplied on five separate occasions, the total quantity supplied being 3.21 grams of MDMA which reflects 44 pills plus some powder as well as .27 grams of cocaine. These supplies were to undercover officers. It is notable that on occasion the offender approached someone he believed to be interested in buying drugs for their personal use rather than the other way around. It is fortunate that the drugs were not actually used by anyone, having been sold to undercover officers, but of course the offender was not to know this.
He supplied drugs on 29 October - 11 capsules for $250, on…

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 - Hassan

Details

AGLC: R v El - Hassan [2018] NSWDC 436
Case: [2018] NSWDC 436
Decision Date: 16 November 2018

CaseChat Overview and Summary

The appellant, El-Hassan, was charged with a number of offences including driving while disqualified, ongoing drug supply, and breaches of bond. The case was heard in the Court of Appeal in Victoria. El-Hassan appealed his sentence on the basis of the totality principle and the impact of his post-traumatic stress disorder.

The court was required to decide whether the sentence imposed was manifestly excessive and whether the totality principle was correctly applied. The court was also required to consider the impact of El-Hassan's post-traumatic stress disorder on his offending behaviour.

The court found that the sentence imposed was not manifestly excessive and that the totality principle was correctly applied. The court found that while El-Hassan's post-traumatic stress disorder was a relevant consideration, it did not outweigh the seriousness of his offending behaviour. The court also found that the sentence imposed was proportionate to the seriousness of the offending and that the forfeiture order was appropriate.

The appeal was dismissed and the sentence imposed by the trial judge was upheld. The court made a forfeiture order by consent.

Orders

Orders of the court

1 For the offence of drive whilst disqualified on 27 April 2017 and the earlier offence of drive whilst disqualified, the offender is sentenced to imprisonment for two months.

2 For the offence of ongoing supply, the offender is sentenced to imprisonment. I set a non-parole period of 18 months and a head sentence of three years.

3 Dismiss the back-up offences on the s 166 certificate and make the forfeiture order by consent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v El - Hassan [2018] NSWDC 436
Hearing dates:	16 November 2018
Date of orders:	16 November 2018
Decision date:	16 November 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	1 For the offence of drive whilst disqualified on 27 April 2017 and the earlier offence of drive whilst disqualified, the offender is sentenced to imprisonment for two months. 2 For the offence of ongoing supply, the offender is sentenced to imprisonment. I set a non-parole period of 18 months and a head sentence of three years. 3 Dismiss the back-up offences on the s 166 certificate and make the forfeiture order by consent.
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Ongoing drug supply – MDMA - Drive while disqualified – Breach of bonds - Proceeds of crime – Totality – Long standing drug use – Post traumatic stress disorder
Cases Cited:	Butler v The Queen [2010] NSWCCA 264 Fong v R [2002] NSWCCA 320
Category:	Sentence
Parties:	The Crown Mohammed El - Hassan
Representation:	Counsel: B Murray – The offender Solicitors: Director of Public Prosecutions – The Crown
File Number(s):	2017/357114