R v Elali - [2019] NSWDC 187

District Court

New South Wales

Medium Neutral Citation: R v Elali [2019] NSWDC 187
Hearing dates: 02 May 2019; 17 May 2019
Date of orders: 17 May 2019
Decision date: 17 May 2019
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
1 You are convicted of the following offences:
(1) Supply prohibited drug contrary to s25(1) DMTA (sequence 3);
2 Taking into account all the matters on the Form 1, you are sentenced to a term of imprisonment of 18 months.
3 Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed on you is to be served by way of an Intensive Correction Order.
4 The sentence will commence today, 17 May 2019 and will expire on 16 November 2020.
5 You must report to the Leichhardt Community Corrections Office as soon as practicable, but no later than 7 days from 17 May 2019. This means that you must report to the Leichhardt Community Corrections Office by 24 May 2019.
6 The standard conditions of the order apply, namely:
(1) You must not commit any offence; and
(2) You must submit to supervision by a Community Corrections Officer.
7 The following additional conditions apply:
(1) A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Mr Elali is currently receiving with Ms Lisa Schouw at Marrickville complies with this condition.
(2) An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner.
8 I order you to undertake community service work of 75 hours.
9 I dismiss the charges contained in the s166 Certificate.
10 I make a forfeiture order with respect to the $1100 that was seized on your arrest on 25 May 2018.
11 All drugs that were taken by police from the accused on 25 May 2018 are to be destroyed.
12 If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.
13 If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.
14 You are now directed to attend the court registry where a copy of this order will be explained and given to you.

Catchwords: CRIME – Sentence – Supply prohibited drug
Legislation Cited: Crimes (Administration of Sentences) Regulation 2014, clause 189I
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 33, 66
Criminal Procedure Act 1986 (NSW), s167
Drug Misuse and Trafficking Act 1985 (DMTA), s25
Cases Cited: Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120
Parente v R [2017] NSWCCA 284
R v Huynh [2005]…

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 Elali

Details

AGLC: R v Elali [2019] NSWDC 187
Case: [2019] NSWDC 187
Decision Date: 17 May 2019

CaseChat Overview and Summary

The case of R v Elali involved the respondent, Mr Elali, who was convicted of supplying a prohibited drug in contravention of the Drugs Misuse and Trafficking Act 1985 (NSW). The trial took place in the District Court of New South Wales, presided over by a judge who was tasked with determining the appropriate sentence for Mr Elali's offence.

The primary legal issue before the court was to decide the appropriate sentence for Mr Elali, considering the nature and circumstances of the offence as well as relevant sentencing principles. The court was required to weigh various factors, including the seriousness of the offence, Mr Elali's culpability, his background, and any mitigating or aggravating circumstances.

In determining the sentence, the court found that Mr Elali had supplied a prohibited drug, which was a serious offence that warranted a significant punishment. However, the court also took into account Mr Elali's previous good character, his cooperation with authorities, and his participation in a rehabilitation program. The court concluded that an Intensive Correction Order was the most appropriate sentence, as it would provide Mr Elali with an opportunity to rehabilitate and reintegrate into society while still imposing a significant penalty for his offence. The court also imposed additional conditions, including a requirement to abstain from drugs, participate in a rehabilitation program, and undertake community service work.

The court ordered that Mr Elali was to be sentenced to a term of imprisonment of 18 months, to be served by way of an Intensive Correction Order. The sentence was to commence on 17 May 2019 and expire on 16 November 2020. The court also imposed a number of conditions on the order, including a requirement to report to the Leichhardt Community Corrections Office within seven days of the sentence commencing. The court further ordered that Mr Elali was to undertake community service work of 75 hours and that any drugs seized from him were to be destroyed. The court also made a forfeiture order with respect to the $1100 that was seized on his arrest.

Orders

Orders of the court

1 You are convicted of the following offences:

(1) Supply prohibited drug contrary to s25(1) DMTA (sequence 3);

2 Taking into account all the matters on the Form 1, you are sentenced to a term of imprisonment of 18 months.

3 Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed on you is to be served by way of an Intensive Correction Order.

4 The sentence will commence today, 17 May 2019 and will expire on 16 November 2020.

5 You must report to the Leichhardt Community Corrections Office as soon as practicable, but no later than 7 days from 17 May 2019. This means that you must report to the Leichhardt Community Corrections Office by 24 May 2019.

6 The standard conditions of the order apply, namely:

(1) You must not commit any offence; and

(2) You must submit to supervision by a Community Corrections Officer.

7 The following additional conditions apply:

(1) A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Mr Elali is currently receiving with Ms Lisa Schouw at Marrickville complies with this condition.

(2) An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner.

8 I order you to undertake community service work of 75 hours.

9 I dismiss the charges contained in the s166 Certificate.

10 I make a forfeiture order with respect to the $1100 that was seized on your arrest on 25 May 2018.

11 All drugs that were taken by police from the accused on 25 May 2018 are to be destroyed.

12 If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

13 If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

14 You are now directed to attend the court registry where a copy of this order will be explained and given to you.

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 Elali [2019] NSWDC 187
Hearing dates:	02 May 2019; 17 May 2019
Date of orders:	17 May 2019
Decision date:	17 May 2019
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	1 You are convicted of the following offences: (1) Supply prohibited drug contrary to s25(1) DMTA (sequence 3); 2 Taking into account all the matters on the Form 1, you are sentenced to a term of imprisonment of 18 months. 3 Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed on you is to be served by way of an Intensive Correction Order. 4 The sentence will commence today, 17 May 2019 and will expire on 16 November 2020. 5 You must report to the Leichhardt Community Corrections Office as soon as practicable, but no later than 7 days from 17 May 2019. This means that you must report to the Leichhardt Community Corrections Office by 24 May 2019. 6 The standard conditions of the order apply, namely: (1) You must not commit any offence; and (2) You must submit to supervision by a Community Corrections Officer. 7 The following additional conditions apply: (1) A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Mr Elali is currently receiving with Ms Lisa Schouw at Marrickville complies with this condition. (2) An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner. 8 I order you to undertake community service work of 75 hours. 9 I dismiss the charges contained in the s166 Certificate. 10 I make a forfeiture order with respect to the $1100 that was seized on your arrest on 25 May 2018. 11 All drugs that were taken by police from the accused on 25 May 2018 are to be destroyed. 12 If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order. 13 If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody. 14 You are now directed to attend the court registry where a copy of this order will be explained and given to you.
Catchwords:	CRIME – Sentence – Supply prohibited drug
Legislation Cited:	Crimes (Administration of Sentences) Regulation 2014, clause 189I Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 33, 66 Criminal Procedure Act 1986 (NSW), s167 Drug Misuse and Trafficking Act 1985 (DMTA), s25
Cases Cited:	Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. Markarian v The Queen [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120 Parente v R [2017] NSWCCA 284 R v Huynh [2005]…