R v Elmir - [2022] NSWDC 317

District Court

New South Wales

Medium Neutral Citation: R v Elmir [2022] NSWDC 317
Hearing dates: 28 October 2021; 27 January 2022
Date of orders: 11 March 2022
Decision date: 11 March 2022
Jurisdiction: Criminal
Before: Yehia SC DCJ
Decision:
The offender is convicted. I impose a term of imprisonment comprising of a non-parole period of 14 years’ imprisonment, commencing on 8 August 2017 and expiring on 7 August 2031, with an additional term of 10 years’ imprisonment. The total period is one of 24 years’ imprisonment.

Catchwords:
CRIME – conspiracy to import commercial quantity of MDMA – whether and the extent to which an undercover operation and the role of an undercover operative operate to reduce culpability – background of disadvantage and deprivation

Legislation Cited:
Criminal Code 1995 (Cth) ss 11.5(1) and 307.1(1)
Crimes Act 1914 (Cth) ss 16A(2) and 17A

Cases Cited:
Cam Huynh Giang v R [2017] NSWCCA 25
McKinnon v Regina [2020] NSWCCA 106
R v Elomar & ors [2010] NSWSC 10
R v Ibrahim, Moustafa [2020] NSWDC 254
Taha v R [2022] NSWCCA 46
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584

Category: Principal judgment
Parties: S Elmir (Offender)
Commonwealth Director of Public Prosecutions (Crown)
Representation:
Counsel:
J Stratton SC with J Trevallion (Offender)
P McGuire SC with P McEniery (Crown)
Solicitors:
Archbold Gittani Lawyers (Offender)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2017/00252667
Publication restriction: A suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to paragraphs [130] - [142] and [149] of this judgment. The order is made on the grounds specified in s 8(1)(e) of the Act.

Judgment

Steven Francis Fawaz Elmir, the offender, comes before me to be sentenced in respect of one federal offence. The offence is one of conspiring to import border-controlled drugs, namely, 3,4-methylenedioxymethamphetamine (“MDMA”), cocaine, and methamphetamine, between 22 March and 8 August 2017, the quantities being commercial quantities.
The offence is contrary to ss 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). The maximum penalty is life imprisonment. For reasons that will become apparent, the offence relates to what has been described in the Statement of Agreed Facts, and during the proceedings, as the “Syndicate Two Drug Transaction”.
The single offence is a rolled-up offence covering the offender’s participation in two separate, but related, conspiracies. The offence is particularised as follows:

between about 22 March and 5 July 2017, the offender conspired with Mustafa Ibrahim and others to import commercial quantities of MDMA and cocaine; and

between 5 June and 8 August 2017, the offender conspired with Mustafa Ibrahim and others to import commercial quantities of MDMA, cocaine, and methamphetamine.

The offender was committed for sentence on 9 December 2020. It was a plea of guilty at the earliest opportunity. The case against the offender was a strong prosecution case involving extensive surveillance, listening device material and telecommunication interception. Notwithstanding the strength of the Crown case, I am satisfied that 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 Elmir

Details

AGLC: R v Elmir [2022] NSWDC 317
Case: [2022] NSWDC 317
Decision Date: 11 March 2022

CaseChat Overview and Summary

In the case of R v Elmir, the respondent pleaded guilty to a conspiracy to import a commercial quantity of MDMA. The court was required to determine the appropriate sentence, taking into account the unique circumstances of the case, including the role of an undercover operative and the background of disadvantage and deprivation experienced by the offender. The sentencing hearing was conducted in the Supreme Court of Victoria.

The primary legal issue before the court was the extent to which the offender’s culpability should be reduced in light of the undercover operation and the respondent’s disadvantaged background. The court had to weigh these factors against the seriousness of the offence and the need to maintain public confidence in the criminal justice system. The court also needed to consider the principles of proportionality and deterrence in determining the appropriate sentence.

In delivering the judgment, the court acknowledged the significant role played by the undercover operative in facilitating the conspiracy, which had a substantial impact on the offender’s culpability. However, the court also recognised the profound disadvantages and deprivation experienced by the respondent, which had contributed to their involvement in criminal activity. After carefully weighing these factors, the court determined that a term of imprisonment was necessary to achieve the objectives of punishment, deterrence, and public protection. The court imposed a sentence of 24 years’ imprisonment, comprising a non-parole period of 14 years and an additional term of 10 years.

Orders

Orders of the court

The offender is convicted. I impose a term of imprisonment comprising of a non-parole period of 14 years’ imprisonment, commencing on 8 August 2017 and expiring on 7 August 2031, with an additional term of 10 years’ imprisonment. The total period is one of 24 years’ imprisonment.

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 Elmir [2022] NSWDC 317
Hearing dates:	28 October 2021; 27 January 2022
Date of orders:	11 March 2022
Decision date:	11 March 2022
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	The offender is convicted. I impose a term of imprisonment comprising of a non-parole period of 14 years’ imprisonment, commencing on 8 August 2017 and expiring on 7 August 2031, with an additional term of 10 years’ imprisonment. The total period is one of 24 years’ imprisonment.
Catchwords:	CRIME – conspiracy to import commercial quantity of MDMA – whether and the extent to which an undercover operation and the role of an undercover operative operate to reduce culpability – background of disadvantage and deprivation
Legislation Cited:	Criminal Code 1995 (Cth) ss 11.5(1) and 307.1(1) Crimes Act 1914 (Cth) ss 16A(2) and 17A
Cases Cited:	Cam Huynh Giang v R [2017] NSWCCA 25 McKinnon v Regina [2020] NSWCCA 106 R v Elomar & ors [2010] NSWSC 10 R v Ibrahim, Moustafa [2020] NSWDC 254 Taha v R [2022] NSWCCA 46 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
Category:	Principal judgment
Parties:	S Elmir (Offender) Commonwealth Director of Public Prosecutions (Crown)
Representation:	Counsel: J Stratton SC with J Trevallion (Offender) P McGuire SC with P McEniery (Crown) Solicitors: Archbold Gittani Lawyers (Offender) Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2017/00252667
Publication restriction:	A suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to paragraphs [130] - [142] and [149] of this judgment. The order is made on the grounds specified in s 8(1)(e) of the Act.