CITATION:
R v HARMOUCHE [2005] NSWCCA 398
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 November 2005

JUDGMENT DATE:

21 November 2005

JUDGMENT OF:
Sully J at 1; Hulme J at 2; Latham J at 76

DECISION:
See paragraph 72

PARTIES:
Regina
Albert Harmouche

FILE NUMBER(S):
CCA 2005/1299

COUNSEL:
Crown: W Roser
Respondent: H Dhanji

SOLICITORS:
Crown: S Kavanagh
Respondent: S O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/0415

LOWER COURT JUDICIAL OFFICER:
Delaney DCJ

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There being accidental error in the formulation of order (iii) appearing at paragraph 72 in this matter the Court corrects that error by ordering in lieu (see paragragrah 72(iii)
IN THE COURT OF
CRIMINAL APPEAL

SULLY J
HULME J
LATHAM J

REGINA v Albert HARMOUCHE

Judgment

1 SULLY J: I agree with Hulme J.

2 HULME J: On 4 November 2004, the abovenamed Respondent to this Crown appeal pleaded guilty before Judge Ellis to a charge “that he between 16 January 2002 and 14 February 2002 … did supply a prohibited drug, namely cocaine”. On 31 May 2005 Judge Delaney sentenced the Respondent to imprisonment for 2 years and 6 months including a non-parole period of 1 year and 3 months, directing that the sentence be served by way of periodic detention.

3 The Respondent’s offence was one provided for by s25(1) of the Drug (Misuse and Trafficking) Act and rendered the Respondent liable to imprisonment for 15 years and a fine equivalent to 2000 penalty units. The Crown contends that the sentence imposed was manifestly inadequate and draws attention, in addition to the sentence itself, to a number of matters which it contends are demonstrative of error on the part of his Honour.

4 The circumstances of the Respondent’s offending as laid before Judge Delaney were contained in a document described as “Agreed Facts”, a Schedule of some 28 telephone calls between 18 January and 9 February 2002 and transcripts of those calls. The “Agreed Facts”, including an agreed amendment to paragraph 6 made during the course of proceedings, are in the following terms:-

“1. Albert Harmouche was born on 14 September 1982.

2. Strike Force Thamesford was established in November 2001 to investigate the distribution and supply of prohibited drugs in the South Western suburbs of Sydney. A combination of physical surveillance and telephone intercepts allowed investigators to uncover a cocaine supply network.

3. Albert Harmouche and Ahmed Sayadi (DOB 12/01/1980) obtained quantities of cocaine from unknown parties and on-sold it either directly or through others including Tallal Rifai (DOB 1/1/83).

4, The Crown Case against Harmouche relies on his use of the mobile telephone service 0407 272 216. Police intercepted this mobile service between 17 January 2002 and 13 February 2002.

5. Between 17 January 2002 and 13 February 2002 inclusive Harmouche either offered or…

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 Harmouche

Details

AGLC: R v Harmouche [2005] NSWCCA 398
Case: [2005] NSWCCA 398
Decision Date: 21 November 2005

CaseChat Overview and Summary

In the Court of Criminal Appeal, the Crown appealed against the sentence imposed by Judge Delaney on Albert Harmouche, who had pleaded guilty to drug supply. The Crown contended that the sentence of two years and six months imprisonment, with a non-parole period of one year and three months, was manifestly inadequate. The appeal was allowed, and Harmouche was re-sentenced to imprisonment for a non-parole period of two years, with a balance of term of one year. The Court found that the original sentence under-valued the extent of Harmouche's criminality and failed to adequately address the purposes of sentencing, particularly general deterrence and retribution. The Court emphasised the importance of adhering to sentencing principles and ensuring that sentences reflect the seriousness of the offence and the need to protect the community from drug-related harm. The Court also noted the unfairness of unequal treatment of co-offenders and the potential injustice to the community when a manifestly inadequate sentence is allowed to stand.

Orders