R v Fadel - [2019] NSWDC 26

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Fadel [2019] NSWDC 26
Hearing dates: 08 January 2019
Date of orders: 08 January 2019
Decision date: 08 January 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 3 months: at [27].

Catchwords: SENTENCING – multiple offences – supply of prohibited drugs – ongoing supply – Form 1 offences – guilty plea – section 166 certificate offences – drive whilst disqualified – principles of totality – special circumstances
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Hili v The Queen; Jones v The Queen [2010] HCA 45
Lam v R [2015] NSWCCA 143
Parente v R [2017] NSWCCA 284
R v Chan [2000] NSWCCA 345
R v Girard [2014] NSWCCA 170
R v MMK (2006) 164 A Crim R 481
R v Nguyen (2006) A Crim R 124
R v Qutami (2001) 127 A Crim R 369
Stratford v R [2007] NSWCCA 279
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown)
Maher Fadel (Offender)
Representation:
Mr Rafeeq (Crown)
Mr Coroneos (Counsel for the offender)

File Number(s): 2017/194671

Judgment

Maher Fadel was born in 1995 and appears for sentence on three counts, with a number of matters to be dealt with on a Form 1 and some matters on a s 166 certificate. First, a count of supply prohibited drugs on an ongoing basis, being 4.93 grams on three occasions between 31 March and 27 April 2017 under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of 20 years imprisonment, with no standard non-parole period. Secondly, an offence of supply a prohibited drug, being 13.8 grams of cocaine under s 25 Drug Misuse and Trafficking Act 1985 which carries a maximum of 15 years imprisonment, with no standard non-parole period. Thirdly, another supply count involving 20 grams of cocaine under s 25 Drug Misuse and Trafficking Act 1985. The matters to be dealt on the Form 1 attached to the first matter are:

sequence 9, supplying five bags of cocaine;

sequence 12, supplying eight bags of cocaine;

sequence 13, supplying an "8-ball" ofr 3.5 gramsof cocaine; all being s 25 matters

sequence 16, possess Boldenone, a prescribed substance which carries a maximum penalty of six months imprisonment; and

sequence 20, a money laundering count involving $3,054 which has a maximum penalty of three years imprisonment.

His custodial history is a little convoluted. Within the last few months he has been sentenced to a term of imprisonment which he is currently serving as a result of orders made at the Central Local Court on 21 November. There is effectively a 12 month sentence with a nine month non-parole period expiring on 21 July 2019. It is common ground that in exercising a discretion the range available for the commencement of the term of imprisonment is between…

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 Fadel

Details

AGLC: R v Fadel [2019] NSWDC 26
Case: [2019] NSWDC 26
Decision Date: 08 January 2019

CaseChat Overview and Summary

The appellant, Fadel, was before the court on appeal against his sentence. The primary issue was whether the sentence imposed by the primary judge was manifestly excessive. The appellant had pleaded guilty to multiple offences, including the supply of prohibited drugs, ongoing supply, Form 1 offences, and driving whilst disqualified. The court had to decide whether the sentence imposed was excessive in light of the principles of totality and the special circumstances of the case.

The court considered the principles of sentencing, particularly the principle of totality, which requires that the aggregate term of imprisonment and the non-parole period be considered together. The court noted that the appellant had a significant criminal history and had been involved in the supply of prohibited drugs over an extended period. The court also considered the special circumstances of the case, including the appellant's guilty plea and the fact that he had been on parole at the time of the offending. The court held that the sentence imposed was not manifestly excessive and dismissed the appeal.

The court ordered that the appeal be dismissed and that the sentence imposed by the primary judge be upheld. The appellant was to serve an aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 3 months. The court held that the sentence was appropriate in light of the appellant's criminal history and the nature and circumstances of the offending. The court also noted that the sentence reflected the seriousness of the offending and the need to deter the appellant and others from engaging in similar conduct.

Orders

Orders of the court

An aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 3 months: at [27].

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 Fadel [2019] NSWDC 26
Hearing dates:	08 January 2019
Date of orders:	08 January 2019
Decision date:	08 January 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 3 months: at [27].
Catchwords:	SENTENCING – multiple offences – supply of prohibited drugs – ongoing supply – Form 1 offences – guilty plea – section 166 certificate offences – drive whilst disqualified – principles of totality – special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Hili v The Queen; Jones v The Queen [2010] HCA 45 Lam v R [2015] NSWCCA 143 Parente v R [2017] NSWCCA 284 R v Chan [2000] NSWCCA 345 R v Girard [2014] NSWCCA 170 R v MMK (2006) 164 A Crim R 481 R v Nguyen (2006) A Crim R 124 R v Qutami (2001) 127 A Crim R 369 Stratford v R [2007] NSWCCA 279
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Maher Fadel (Offender)
Representation:	Mr Rafeeq (Crown) Mr Coroneos (Counsel for the offender)
File Number(s):	2017/194671