R v Farah; R v Boustani - [2020] NSWDC 192

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Farah; R v Boustani [2020] NSWDC 192
Hearing dates: 04 May 2020
Decision date: 07 May 2020
Jurisdiction: Criminal
Before: Yehia SC DCJ
Decision:
Ray Farah
(1) The offender is convicted. Taking into account a discount of 20%, I impose a sentence of imprisonment consisting of a non-parole period of 4 years 9 months imprisonment commencing on 11 October 2018 and expiring on 10 July 2023 with a balance of term of 3 years 9 months imprisonment, expiring on 10 April 2027. The total term is 8 years 6 months imprisonment. The starting point before the application of the 20% reduction in sentence is 10 years 8 months imprisonment.
Elias Boustani
(1) The offender is convicted. Taking into account a discount of 25%, I impose a sentence of imprisonment consisting of a non-parole period of 5 years imprisonment commencing on 11 October 2018 and expiring on 10 October 2023, with a balance of term of 4 years imprisonment, expiring on 10 October 2027. The total term is 9 years imprisonment. The starting point before the application of the 25% reduction in sentence is 12 years imprisonment.

Catchwords: SENTENCING – possession of a commercial quantity of cocaine – assessment of the criminality of each co-offender having regard to role played in the offence – undertaking menial tasks – role at the lower end of the range of objective seriousness
Cases Cited: Brown v R [2020] VSC 60
DPP (Cth) v Politopoulos [2020] VCC 338
DPP v Morey (a pseudonym) [2020] VCC 320
DPP v Tennison [2020] VCC 343
Hili v R; Jones v R (2010) 242 CLR 520
R v Kassir [2020] NSWCCA 88
R v Michael Anderson (District Court (NSW), 27 November 2008, unrep)
R v Miranda [2002] NSWCCA 89
R v Zeng [2008] NSWCCA 183
Rakielbakhour v DPP [2020] NSWSC 323
Shakhanov v The Queen [2019] VSCA 38
The Queen v Pham (2015) 256 CLR 550
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
Category: Sentence
Parties: Commonwealth Director of Public Prosecutions
Ray Farah
Elias Boustani
Representation:
Counsel:
R Ranken (CDPP)
B Walker SC, A Djemal (E Boustani)
G Brady SC (R Farah)
Solicitors:
Kiki Kyriacou Lawyers (E Boustani)
Hanna Legal (R Farah)

File Number(s): 2018/00311862; 2018/00311864

Judgment

Each offender comes before the Court to be sentenced in respect of one offence of possessing a commercial quantity of a border controlled drug, reasonably suspected of having been unlawfully imported, by way of joint commission. The offence is contrary to ss 11.2A(1) and 307.8(1) of the Criminal Code 1995 (Cth) and carries a maximum penalty of life imprisonment and/or 7,500 penalty units ($1,575,000).
The border controlled drug is cocaine with a combined pure weight of 98.07kg. The wholesale value of the cocaine seized is estimated at between $18,958,000 and $26,427,000.
Mr Farah entered a plea of guilty on 29 November 2019 in the District Court when the matter was listed in the Commonwealth Super…

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.

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Details

Case: [2020] NSWDC 192
Decision Date: 07 May 2020

CaseChat Overview and Summary

The case of R v Farah; R v Boustani involved the conviction of two individuals, Ray Farah and Elias Boustani, for their involvement in the possession of a commercial quantity of cocaine. The dispute was heard in the Supreme Court of New South Wales, where the primary legal issue was the determination of an appropriate sentence for each offender, taking into account the roles they played in the offence. The court needed to assess the criminality of each defendant based on the tasks they performed, with the aim of ensuring that the sentence reflected the objective seriousness of their respective contributions.

In addressing the legal issues, the court considered the nature and extent of Farah's and Boustani's involvement in the drug trafficking operation. Farah was found to have undertaken menial tasks, placing his role at the lower end of the range of objective seriousness. Conversely, Boustani's role was deemed to have a higher degree of criminal responsibility. The court applied a discount to the base sentences based on these assessments, with Farah receiving a 20% reduction and Boustani a 25% reduction. This approach was intended to reflect the differences in their respective levels of criminality and culpability.

The court's reasoning led to the imposition of specific sentences for each offender. For Farah, the court imposed a total term of 8 years 6 months imprisonment, with a non-parole period of 4 years 9 months. For Boustani, the sentence was set at 9 years imprisonment, with a non-parole period of 5 years. The court's decision was grounded in the need to balance the severity of the offence with the individual culpability of each defendant, resulting in sentences that were proportionate to their respective roles in the criminal activity.

Orders

Orders of the court

Ray Farah

(1) The offender is convicted. Taking into account a discount of 20%, I impose a sentence of imprisonment consisting of a non-parole period of 4 years 9 months imprisonment commencing on 11 October 2018 and expiring on 10 July 2023 with a balance of term of 3 years 9 months imprisonment, expiring on 10 April 2027. The total term is 8 years 6 months imprisonment. The starting point before the application of the 20% reduction in sentence is 10 years 8 months imprisonment.

Elias Boustani

(1) The offender is convicted. Taking into account a discount of 25%, I impose a sentence of imprisonment consisting of a non-parole period of 5 years imprisonment commencing on 11 October 2018 and expiring on 10 October 2023, with a balance of term of 4 years imprisonment, expiring on 10 October 2027. The total term is 9 years imprisonment. The starting point before the application of the 25% reduction in sentence is 12 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 Farah; R v Boustani [2020] NSWDC 192
Hearing dates:	04 May 2020
Decision date:	07 May 2020
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	Ray Farah (1) The offender is convicted. Taking into account a discount of 20%, I impose a sentence of imprisonment consisting of a non-parole period of 4 years 9 months imprisonment commencing on 11 October 2018 and expiring on 10 July 2023 with a balance of term of 3 years 9 months imprisonment, expiring on 10 April 2027. The total term is 8 years 6 months imprisonment. The starting point before the application of the 20% reduction in sentence is 10 years 8 months imprisonment. Elias Boustani (1) The offender is convicted. Taking into account a discount of 25%, I impose a sentence of imprisonment consisting of a non-parole period of 5 years imprisonment commencing on 11 October 2018 and expiring on 10 October 2023, with a balance of term of 4 years imprisonment, expiring on 10 October 2027. The total term is 9 years imprisonment. The starting point before the application of the 25% reduction in sentence is 12 years imprisonment.
Catchwords:	SENTENCING – possession of a commercial quantity of cocaine – assessment of the criminality of each co-offender having regard to role played in the offence – undertaking menial tasks – role at the lower end of the range of objective seriousness
Cases Cited:	Brown v R [2020] VSC 60 DPP (Cth) v Politopoulos [2020] VCC 338 DPP v Morey (a pseudonym) [2020] VCC 320 DPP v Tennison [2020] VCC 343 Hili v R; Jones v R (2010) 242 CLR 520 R v Kassir [2020] NSWCCA 88 R v Michael Anderson (District Court (NSW), 27 November 2008, unrep) R v Miranda [2002] NSWCCA 89 R v Zeng [2008] NSWCCA 183 Rakielbakhour v DPP [2020] NSWSC 323 Shakhanov v The Queen [2019] VSCA 38 The Queen v Pham (2015) 256 CLR 550 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Ray Farah Elias Boustani
Representation:	Counsel: R Ranken (CDPP) B Walker SC, A Djemal (E Boustani) G Brady SC (R Farah) Solicitors: Kiki Kyriacou Lawyers (E Boustani) Hanna Legal (R Farah)
File Number(s):	2018/00311862; 2018/00311864