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R v El Jamal

R v El Jamal

Case [2019] NSWDC 153 1 May 2019

Sentencing

Drug Offences

Commonwealth Offences

Proportionality

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v El Jamal [2019] NSWDC 153
Hearing dates: 22 November 2018, 23 November 2018,17 April 2019, 18 April 2019
Date of orders: 01 May 2019
Decision date: 01 May 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 14 years.
Non parole period of 9 years 8 months.

Catchwords:
SENTENCING — Attempt to import a commercial quantity of unlawfully imported border controlled drug – 3.7kg pure methylamphetamine – serious matter on schedule – fact finding on sentence – Evidence Act applies – assessing witnesses – expert psychiatric evidence not accepted – offender’s evidence not accepted – offender with no credibility – long criminal history – hardship in custody – proportionality with co-offender.

CRIMINAL PROCEDURE — Direction that the Evidence Act applies.
CRIME — Drug offences — Commonwealth offences — Import border-controlled prohibited plant or drug.
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Evidence Act 1995
Cases Cited: Afu v R [2017] NSWCCA 246
Attorney General’s Application No. 1 (2002) 56 NSWLR 146
Barbaro v The Queen (2014) 253 CLR 58
Cartwright v R (1989) 17 NSWLR 243
Dennison v R [2011] NSWCCA 114
Devaney v R [2012] NSWCCA 285
DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1
Fox v Percy (2003) 214 CLR 118
Green v The Queen (2011) 244 CLR 462
Hili v The Queen (2010) 242 CLR 520
Johnson v R [2010] NSWCCA 124
Lamella [2014] NSWCCA 122
MAK v R [2006] NSWCCA 381
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Markarian v The Queen (2005) 228 CLR 357
Nguyen [2010] NSWCCA 238
Olbrich v The Queen (1999) 199 CLR 270
Postiglione v The Queen (1997) 189 CLR 295
Power v The Queen (1974) 131 CLR 623
R v Clinch (1994) 72 A Crim R 301
R v Moradian (2011) NSWDC 130
Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704
R v Thomson (2000) 49 NSWLR 383.
The Queen v Pham [2015] HCA 39
Veen v The Queen (No 2) (1988) 164 CLR 465 at 477
Xiao v R [2018] NSWCCA 4
Texts Cited: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p497.
Category: Sentence
Parties: Fadi El Jamal (the offender)
Director of Public Prosecutions (Commonwealth)
Representation:
Counsel:
Ms A Moen (for the offender)
Mr S Buchen SC (for the Director of Public Prosecutions, Commonwealth)
Solicitors:
Mr N Moore (for the offender)
Mr K Kanagasabapathy (for the Director of Public Prosecutions, Commonwealth)

File Number(s): 2016/00098482

Judgment

Introduction

On 31 March 2016 Fadi El Jamal, (“El Jamal”) the offender before the court, was arrested at Sydney International Airport.
When he was before the Local Court El Jamal entered a plea of guilty to a charge that he attempted to possess a commercial quantity of the…

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 Jamal

Details

AGLC: R v El Jamal [2019] NSWDC 153
Case: [2019] NSWDC 153
Decision Date: 01 May 2019

CaseChat Overview and Summary

The case of R v El Jamal involved the sentencing of the defendant, who was convicted of attempting to import a commercial quantity of methylamphetamine. The matter was heard in a higher court where the defendant was subject to a sentence for a serious drug offence under Commonwealth law. The primary legal issue before the court was to determine an appropriate sentence that reflected the gravity of the offence, taking into account the specific provisions of the Evidence Act and the reliability of the evidence presented. The court had to consider the defendant's criminal history, the quantity of drugs involved, and the credibility of the testimonies and expert evidence.

The court applied the Evidence Act to assess the credibility of the witnesses and expert psychiatric evidence provided. It found the expert psychiatric evidence and the defendant's own testimony to be unreliable and lacking in credibility. The defendant's extensive criminal history was also a significant factor in the sentencing determination. Despite the hardship experienced by the defendant during his time in custody, the court balanced this with the need for proportionality in sentencing, especially in relation to co-offenders. Ultimately, the court held that the offence was of a serious nature given the amount of drugs involved and the defendant's role in the importation attempt.

The court sentenced the defendant to a term of imprisonment of 14 years, with a non-parole period of 9 years and 8 months. This decision reflects the court's consideration of the seriousness of the offence, the defendant's criminal history, and the need for a proportionate sentence in relation to co-offenders.

Orders

Orders of the court

Sentenced to a term of imprisonment of 14 years.

Non parole period of 9 years 8 months.

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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Citations

AGLC Citation

R v El Jamal [2019] NSWDC 153

Most Recent Citation

El Jamal v R [2021] NSWCCA 105

Cases citing this decision · 1 of 1 shown

El Jamal v R
[2021] NSWCCA 105

…ment is prohibited. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2019] NSWDC 153 Date of Decision: 01 May 2019 Before: Haesler SC DCJ File Number(s): 2016/98482…

View all 1 citing cases →

Cases cited in this decision · 24 of 24 shown

R v Cartwright
[2018] ACTSC 132 Para 97

…full and frank co-operation, the willingness with which the disclosure is made and of course the effectiveness of it. As was noted in Cartwright v R (1989) 17 NSWLR 243.…
Xiao v R
[2018] NSWCCA 4 Para 94

…when pleas of guilty avoid long and costly trials. It is desirable that, in the interests of transparency, such discounts be specified: see Xiao v R [2018] NSWCCA 4 at [269]–[278]. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea: R v Thomson (20…
Afu v R
[2017] NSWCCA 246 Para 106

…known as parity. It is a classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.…
R v Pham
[2015] HCA 39 Para 109

…each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520 ; Barbaro v The Queen (2014) 253 CLR 58, at [74]. In The Queen v Pham [2015] HCA 39, Bell and Gaegler JJ said, at [47]; “…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropria…
R v Lamella
[2014] NSWCCA 122 Para 91

…118]. There is no distinction in the application of principle between State offences and Commonwealth: Dennison v R [2011] NSWCCA 114 and Lamella [2014] NSWCCA 122, at [48].…
Barbaro v The Queen
[2014] HCA 2 Para 109

…s a yardstick or help establish a range, however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520 ; Barbaro v The Queen (2014) 253 CLR 58, at [74]. In The Queen v Pham [2015] HCA 39, Bell and Gaegler JJ said, at [47]; “…sentencing is a discretionary judgment and the mix of factors that…
Devaney v R
[2012] NSWCCA 285 Para 84

…the opinion of a professional psychiatrist tendered without the psychiatrist being required for cross-examination. As Allsop P, noted in Devaney v R [2012] NSWCCA 285, at [88]:…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 106

…ith like.” This principle is known as parity. It is a classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.…
R v Dennison
[2011] NSWCCA 114 Para 91

…Nguyen [2010] NSWCCA 238 at [118]. There is no distinction in the application of principle between State offences and Commonwealth: Dennison v R [2011] NSWCCA 114 and Lamella [2014] NSWCCA 122, at [48].…
Hili v The Queen
[2010] HCA 45 Para 109

…past sentences for an offence may serve as a yardstick or help establish a range, however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520 ; Barbaro v The Queen (2014) 253 CLR 58, at [74]. In The Queen v Pham [2015] HCA 39, Bell and Gaegler JJ said, at [47]; “…sentencing is a discretiona…
R v Nguyen; R v Pham
[2010] NSWCCA 238 Para 91

…56 NSWLR 146. Sometimes, as must be the case here, the increase can be substantial: Attorney General’s Application No. 1 at para [18] and Nguyen [2010] NSWCCA 238 at [118]. There is no distinction in the application of principle between State offences and Commonwealth: Dennison v R [2011] NSWCCA 114 and Lamella [20…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 104

…e in prison or from exposure to violence and may be exacerbated by lengthy imprisonment and the conditions under which it is served: DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1, at [177]. It must be recognised that prisons are inherently violent places.…
Johnson v R
[2010] NSWCCA 124 Para 107

…ifference in the time each will serve in prison. There can be reasons why one offender is less objectively culpable than others involved: Johnson v R [2010] NSWCCA 124. This case provides an example. Role and position in the hierarchy are often determinative of penalty in importation matters. Proper application of t…
R v MAK
[2006] NSWCCA 381 Para 105

…f two years has greater impact than one, so far as the punitive aspects of a sentence is concerned: R v Clinch (1994) 72 A Crim R 301 at 306; MAK v R [2006] NSWCCA 381.…
Markarian v The Queen
[2005] HCA 25 Para 91

…and do take it into account as part of my overall synthesis of relevant factors when I sentence for the principal offence: see Markarian v The Queen (2005) 228 CLR 357. I do so to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 (2002) 56 NSW…
Fox v Percy
[2003] HCA 22 Para 53

…conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118, at [30]-[31].…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 91

…228 CLR 357. I do so to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 (2002) 56 NSWLR 146. Sometimes, as must be the case here, the increase can be substantial: Attorney General’s Application No. 1 at para [18] and Nguyen [2010] NSWCCA 238 a…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 94

…4 at [269]–[278]. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea: R v Thomson (2000) 49 NSWLR 383.…
R v Olbrich
[1999] HCA 54 Para 52

…contested I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. As the High Court made clear in Olbrich v The Queen (1999) 199 CLR 270, matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond…
Regina v Simpson
[1999] NSWCCA 367 Para 110

…sentence spent on parole must itself bear a proportionate relation to the crime and the other purposes of sentencing: Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704.…
Postiglione v the Queen
[1997] HCA 26 Para 107

…necessarily mean that each offender is sentenced on the basis their individual actions had the same objective criminality. In Postiglione v The Queen (1997) 189 CLR 295, Dawson and Gaudron JJ pointed out that disparity is not simply the imposition of different sentences for the same offence but a question of dispropo…
Veen v The Queen (No 2)
[1988] HCA 14 Para 108

…e, here, a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.…
Power v The Queen
[1974] HCA 26 Para 110

…nimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention: Power v The Queen (1974) 131 CLR 623, at 628. The part of the sentence spent on parole must itself bear a proportionate relation to the crime and the other purposes of sentencing: Simpso…
Pty Ltd v Sprowles
636 F Supp 1419 Para 85

…re an opinion can be accepted it must be established that the facts on which the opinion is based form a proper foundation for it: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.…

Legislation cited in this decision · 3

Crimes Act 1914 (Cth)
3 mentions (from Para 3)
Criminal Code Act 1995 (Cth)
1 mention (from Para 2)
Evidence Act 1995 (Cth)
1 mention (from Para 5)

Medium Neutral Citation:	R v El Jamal [2019] NSWDC 153
Hearing dates:	22 November 2018, 23 November 2018,17 April 2019, 18 April 2019
Date of orders:	01 May 2019
Decision date:	01 May 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 14 years. Non parole period of 9 years 8 months.
Catchwords:	SENTENCING — Attempt to import a commercial quantity of unlawfully imported border controlled drug – 3.7kg pure methylamphetamine – serious matter on schedule – fact finding on sentence – Evidence Act applies – assessing witnesses – expert psychiatric evidence not accepted – offender’s evidence not accepted – offender with no credibility – long criminal history – hardship in custody – proportionality with co-offender. CRIMINAL PROCEDURE — Direction that the Evidence Act applies. CRIME — Drug offences — Commonwealth offences — Import border-controlled prohibited plant or drug.
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Evidence Act 1995
Cases Cited:	Afu v R [2017] NSWCCA 246 Attorney General’s Application No. 1 (2002) 56 NSWLR 146 Barbaro v The Queen (2014) 253 CLR 58 Cartwright v R (1989) 17 NSWLR 243 Dennison v R [2011] NSWCCA 114 Devaney v R [2012] NSWCCA 285 DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1 Fox v Percy (2003) 214 CLR 118 Green v The Queen (2011) 244 CLR 462 Hili v The Queen (2010) 242 CLR 520 Johnson v R [2010] NSWCCA 124 Lamella [2014] NSWCCA 122 MAK v R [2006] NSWCCA 381 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Markarian v The Queen (2005) 228 CLR 357 Nguyen [2010] NSWCCA 238 Olbrich v The Queen (1999) 199 CLR 270 Postiglione v The Queen (1997) 189 CLR 295 Power v The Queen (1974) 131 CLR 623 R v Clinch (1994) 72 A Crim R 301 R v Moradian (2011) NSWDC 130 Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704 R v Thomson (2000) 49 NSWLR 383. The Queen v Pham [2015] HCA 39 Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 Xiao v R [2018] NSWCCA 4
Texts Cited:	Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p497.
Category:	Sentence
Parties:	Fadi El Jamal (the offender) Director of Public Prosecutions (Commonwealth)
Representation:	Counsel: Ms A Moen (for the offender) Mr S Buchen SC (for the Director of Public Prosecutions, Commonwealth) Solicitors: Mr N Moore (for the offender) Mr K Kanagasabapathy (for the Director of Public Prosecutions, Commonwealth)
File Number(s):	2016/00098482