R v El Helou, El Helou v R [2010] NSWCCA 111 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
21 April 2010
JUDGMENT DATE:
21 May 2010
JUDGMENT OF:
Allsop P at 1; Grove J at 93; Hislop J at 94
DECISION:
1. Extend time for the filing and serving of a notice of appeal against conviction to 26 March 2010 and treat the draft notice of appeal provided to the Court on 23 March 2010 as the filing and serving of a notice of appeal on or before 26 March 2010. 2. Dismiss the conviction appeal. 3. Allow the Crown’s appeal against sentence. 4. Set aside the orders of the District Court made on 10 July 2009 and in lieu thereof the Court sentences the respondent Mr Gary El Helou to a term of imprisonment with a non-parole period of eight years commencing on 11 July 2008 and expiring on 10 July 2016 with a balance of term of four years commencing on the expiration of the non-parole period and expiring on 10 July 2020.
CATCHWORDS:
CRIMINAL LAW – appeal against sentence – appeals by Crown – whether sentence manifestly inadequate – knowingly taking part in supply of more than large commercial quantity of pseudoephedrine – objective criminality of the offence above mid-range of seriousness – failure to give sufficient weight to standard non-parole period - CRIMINAL LAW – appeal against conviction – Constitutional validity of Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – not inconsistent with Criminal Code (Cth), s 306.2 – not incompatible with exercise of Commonwealth judicial power
[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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AGLC
R v El Helou [2010] NSWCCA 111
Case
[2010] NSWCCA 111
Decision Date
CaseChat Overview and Summary
In the matter of R v El Helou, the appellant was found guilty of multiple counts related to the illegal supply of pseudoephedrine. The Crown appealed against both the sentence and the conviction, arguing that the sentence was manifestly inadequate and that the relevant statute under which the appellant was convicted was constitutionally valid. The case was heard in the Court of Criminal Appeal in New South Wales.
The primary legal issues the court had to address were whether the sentence imposed on the appellant was manifestly inadequate, and whether section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) was inconsistent with the Commonwealth's Criminal Code. The court also considered whether the sentence adequately reflected the objective criminality of the offence and whether it gave sufficient weight to the standard non-parole period for such offences. The Crown further argued that the appellant's involvement in the supply of a large commercial quantity of pseudoephedrine warranted a sentence at the upper end of the scale.
The court, in its judgment, found that the sentence imposed on the appellant was manifestly inadequate in light of the objective criminality of the offence, which was considered to be above the mid-range of seriousness. The court noted that the sentence did not sufficiently reflect the gravity of the appellant's involvement in the supply of pseudoephedrine and did not give adequate weight to the standard non-parole period. Regarding the constitutional validity of section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), the court determined that it was not inconsistent with the Commonwealth's Criminal Code and did not infringe upon the exercise of Commonwealth judicial power.
Consequently, the court allowed the Crown's appeal against the sentence, quashed the original sentence, and remitted the matter to the District Court for resentencing. The court found the conviction to be valid and dismissed the appeal against it.