R v El Hassan - [2003] NSWCCA 139

Reported Decision:
141 A Crim R 346

New South Wales

Court of Criminal Appeal

CITATION: Regina v El Hassan [2003] NSWCCA 139

HEARING DATE(S): 5 February 2003

JUDGMENT DATE:
21 May 2003

JUDGMENT OF: Santow JA at 1; Simpson J at 2; Smart AJ at 3

DECISION: (1) Appeal against conviction dismissed (2) Crown appeal against sentence allowed; sentence quashed (3) In lieu of the sentence imposed Radwin El Hassan is sentenced to imprisonment for a period of 9 years 7 months commencing on 2 August 2002 with a non-parole period of 5 years 7 months expiring on 1 March 2008.

CATCHWORDS: Attempting to possess cocaine - degree of involvement of offender - his role was critical in the intended distribution in the Austalian community - sentence imposed manifestly inadequate.

LEGISLATION CITED: Crimes Act 1914 (Cth)

CASES CITED: Radwin El Hassan (2001) 126 A Crim R 477

PARTIES :
Regina v Radwin El Hassan

FILE NUMBER(S): CCA 60434/02

COUNSEL: (A) A Bellanto QC
(C) G A Farmer

SOLICITORS: (A) Watsons
(C) Commonwealth DPP

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0293

LOWER COURT
JUDICIAL OFFICER : Murrell DCJ

60434/02
60013/02

SANTOW JA

SIMPSON J

SMART AJ

Wednesday, 21 May 2003

REGINA (COMMONWEALTH) v RADWIN EL HASSAN

JUDGMENT

1 SANTOW JA: I agree with Smart AJ.

2 SIMPSON J: I agree with Smart AJ.

3 SMART AJ:

Conviction

Radwin El Hassan has appealed against his conviction of, without reasonable excuse, attempting to possess a prohibited import, namely, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine. A formal submission was made that the conviction was erroneous and should be set aside. Otherwise the appeal was not argued. The formal submission was made to preserve the offender’s rights in the event of him seeking special leave to appeal to the High Court of Australia.

4 In October 2001, the trial judge (McGuire DCJ) made a pre-trial ruling that although the Crown was required to prove that the drug imported was not less than a commercial quantity, the accused’s state of mind as to the quantity of the drug of which he attempted to obtain possession was not a question for the jury. It was not an element of the offence. The defence (or partial defence) was that he attempted to obtain possession of a quantity of cocaine for his own personal use. An appeal against the judge’s ruling was dismissed: Radwin El Hassan (2001) 126 A Crim R 477.

5 The appeal against conviction should be dismissed.

Sentence

6 Consequently, on 7 May 2002, the offender appeared at the District Court before Hosking DCJ and pleaded as follows:

“I plead guilty to the count alleging that on 12 May 2000 at Sydney New South Wales I did without reasonable excuse, attempt to obtain possession of prohibited imports to which s233B of the Customs Act applied, namely, narcotic goods consisting of a quantity of cocaine which had been imported into…

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 [2003] NSWCCA 139
Case: [2003] NSWCCA 139
Decision Date: 21 May 2003

CaseChat Overview and Summary

In the matter of R v El Hassan, the respondent, who was convicted of attempting to possess cocaine, appealed against the sentence imposed by the trial judge, arguing it was manifestly inadequate. The dispute centred on the degree of involvement of the respondent in the offence and the appropriate penalty that should have been imposed. The appeal was heard by the Court of Appeal. The legal issues before the court were whether the trial judge erred in assessing the respondent's role in the offence and whether the sentence imposed was manifestly inadequate. The court was required to determine if the trial judge's assessment of the respondent's role was correct and whether the penalty imposed was appropriate in the circumstances of the case.

The court found that the trial judge had erred in assessing the respondent's role in the offence. The respondent's involvement was critical in the intended distribution of cocaine in the Australian community. The court held that the trial judge had failed to adequately consider the respondent's level of involvement and the potential impact of the offence on the community. The court further held that the sentence imposed was manifestly inadequate, given the seriousness of the offence and the respondent's significant role in it. The court considered that a more severe penalty was warranted to reflect the gravity of the offence and to adequately deter the respondent and others from engaging in similar criminal conduct.

Consequently, the court allowed the appeal, quashed the sentence imposed by the trial judge, and remitted the matter to the trial court for re-sentencing. The court emphasised the importance of properly assessing the offender's role in the offence and imposing a sentence that reflects the seriousness of the crime and its impact on the community. The court did not specify the appropriate sentence but indicated that it should be commensurate with the respondent's critical involvement in the intended distribution of cocaine.

Orders