R v Eldamouni - [2020] NSWDC 807

District Court

New South Wales

Medium Neutral Citation: R v Eldamouni [2020] NSWDC 807
Hearing dates: 21 February 2020
Decision date: 03 April 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Supply prohibited drug and matter on Form 1: 12 months imprisonment to be served by way of an Intensive Corrections Order.
Possess prohibited drug: Community Correction Order for 18 months.

Catchwords:
CRIME – sentence – supply prohibited drug – possess prohibited drug – poly drug use – substance dependence – pleas of guilty – remorse – no prior convictions – good character – attempts to reform since being charged – family responsibilities – promote rehabilitation.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Cicciarello v R [2009] NSWCCA 272
Parente v R [2017] NSWCCA 204.
Robertson v R [2017] NSWCCA 205
R v McDonnell [2002] NSWCCA 34
Thomson and Houlton v R [2000] NSWCCA 309

Category: Sentence
Parties: Regina (Crown)
Talah Eldamouni (Offender)
Representation:
Counsel:
Mr Phillips (Offender)
Solicitors:
Mr George (DPP)

File Number(s): 2018/00101429
Publication restriction: No

Judgment

Talah Eldamouni appears today for sentence in relation to two matters, one on an indictment and another matter on a s 166 certificate which came to the Court as a back-up charge, but by reason of negotiations between the parties, winds up requiring treatment as a related charge under s 167 Criminal Procedure Act.
There is a matter to be taken into account on a Form 1 in respect of the matter on the indictment. The charge on the indictment alleges that the prisoner, on 2 April 2018 at Zetland in the State of New South Wales, did supply a prohibited drug namely gamma‑butyrolactone in the amount of 93.66 grams. An indictable quantity of this particular prohibited drug is 50 grams; a commercial quantity is one kilogram. This is an offence contrary to s 25(1) Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 15 years’ imprisonment and/or a fine of 2,000 penalty units. It is not appropriate in this matter to impose a fine. There is no standard non-parole period.
The Form 1 matter is another supply prohibited drug offence, contrary to the Drug Misuse and Trafficking Act. This is an offence of supplying 3.15 grams of 3,4‑methylenedioxymethamphetamine, otherwise known as MDMA, at the same time. The matter on the s 166 certificate, which is sequence 3 of the offences at the Local Court, is an offence of possessing a prohibited drug, to wit cocaine.
The offender was in fact committed for trial on three offences, one offence in relation to the matter currently on indictment, another offence of supplying cocaine in an amount of 5.79 grams and the offence of supplying MDMA in the amount of 3.15 grams. Three back-up charges came up to the Court. There is a related charge on the s 166 certificate of possessing a prohibited drug, alprazolam. That is an offence which now is to be treated in the same way as…

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 Eldamouni

Details

AGLC: R v Eldamouni [2020] NSWDC 807
Case: [2020] NSWDC 807
Decision Date: 03 April 2020

CaseChat Overview and Summary

The case before the court involved the defendant, Eldamouni, who had pleaded guilty to charges of supplying and possessing a prohibited drug. The case was heard in an Australian court. The defendant's poly drug use, substance dependence, and lack of prior convictions were considered mitigating factors, alongside his expressions of remorse, attempts at reform, and family responsibilities. The legal issues before the court were the appropriate sentencing for each offence, taking into account the defendant's circumstances and the principles of rehabilitation.

The court was required to balance the need for deterrence and denunciation with the potential for rehabilitation. It considered the nature and circumstances of the offences, the defendant's personal circumstances, and the impact of the proposed sentences on the defendant and his family. The court also took into account the defendant's efforts to reform and his prospects for rehabilitation. The court determined that a sentence of 12 months imprisonment, to be served by way of an Intensive Corrections Order, was appropriate for the supply charge. For the possession charge, the court imposed a Community Correction Order for 18 months.

The court's reasoning was based on the principles of sentencing outlined in relevant legislation and case law. The court found that the defendant's substance dependence and family responsibilities were significant mitigating factors. The court also considered the defendant's remorse, attempts at reform, and good character. The court determined that a custodial sentence was necessary for the supply charge, but that an Intensive Corrections Order would provide an opportunity for rehabilitation. For the possession charge, the court determined that a non-custodial sentence was appropriate, given the defendant's personal circumstances and the need for rehabilitation.

The court made specific orders in relation to the sentences. For the supply charge, the court ordered that the defendant be sentenced to 12 months imprisonment, to be served by way of an Intensive Corrections Order. For the possession charge, the court imposed a Community Correction Order for 18 months. These orders reflect the court's consideration of the legal issues and the defendant's personal circumstances.

Orders

Orders of the court

Supply prohibited drug and matter on Form 1: 12 months imprisonment to be served by way of an Intensive Corrections Order.

Possess prohibited drug: Community Correction Order for 18 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Eldamouni [2020] NSWDC 807
Hearing dates:	21 February 2020
Decision date:	03 April 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Supply prohibited drug and matter on Form 1: 12 months imprisonment to be served by way of an Intensive Corrections Order. Possess prohibited drug: Community Correction Order for 18 months.
Catchwords:	CRIME – sentence – supply prohibited drug – possess prohibited drug – poly drug use – substance dependence – pleas of guilty – remorse – no prior convictions – good character – attempts to reform since being charged – family responsibilities – promote rehabilitation.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Cicciarello v R [2009] NSWCCA 272 Parente v R [2017] NSWCCA 204. Robertson v R [2017] NSWCCA 205 R v McDonnell [2002] NSWCCA 34 Thomson and Houlton v R [2000] NSWCCA 309
Category:	Sentence
Parties:	Regina (Crown) Talah Eldamouni (Offender)
Representation:	Counsel: Mr Phillips (Offender) Solicitors: Mr George (DPP)
File Number(s):	2018/00101429
Publication restriction:	No