R v Ismael - [2022] NSWDC 560

District Court

New South Wales

Medium Neutral Citation: R v Ismael [2022] NSWDC 560
Hearing dates: 10/12/21, 4/2/22
Date of orders: 4/2/22
Decision date: 04 February 2022
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 4 years 10 months with a NPP of 3 years (27/10/20-26/10/23).
I find special circumstances.
The indicative sentences are:
Seq 1 Supply commercial qty methylamphetamine – 4 years 3 months with NPP 2 years 7 months (3 matters on Form 1 taken into account)
Seq 11 Possess pistol – 2 years 9 months with NPP 1 year 8 months (Form 1 taken into account).
Seq 12 Proceeds of crime – 18 months.
I make the forfeiture order as per the Short Minute of Consent Order signed and dated by me today.

Catchwords:
Crime – Sentence – Supply commercial quantity of MDMA – Possess unauthorised pistol – Dealing with proceeds of crime

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Commonwealth DPP v De La Rosa [2010] NSWCCA 194
Doudar v R [2021] NSWCCA 37
Mbele v R [2021] NSWCCA 182
Moodie v R [2020] NSWCCA 16
Muldrock v R [2011] 244 CLR 120
Parente v R [2017] NSWCCA 284
Veen v R (No.2) (1998) 164 CLR 465

Category: Sentence
Parties: NSW DPP – Crown
Michael Ismael - Offender
Representation: Ms L Robeau for Crown
Mr A Williams for Offender

File Number(s): 2020/307798

SENTENCE

Mr Michael Ismael is for sentence in relation to three offences. Those being firstly, the sequence 1 offence which is an offence of supply commercial quantity of MDMA, also known as ecstasy. The maximum penalty for that offence is 20 years imprisonment and it attracts a standard non-parole period of 10 years. In sentencing him for that offence, he asks that I take into account three offences on a Form 1 document and I intend to take that course.
The second offence before the court is the sequence 11 offence of possessing an unauthorised pistol. The maximum penalty for that being 14 years and a standard non-parole period of 4 years applies. In addition, he asks that I take into account a further offence on a Form 1 document which is an offence of possessing ammunition.
The third offence before the court is a sequence 12 offence which is one of dealing with property, namely $102,850 in cash that is reasonably suspected of being proceeds of crime. The maximum penalty for that offence is five years’ imprisonment.
Of course the maximum penalties and where applicable, the standard non-parole periods are important yardsticks or guideposts in the sentencing exercise, to which I have regard.
The offender pleaded guilty at the earliest opportunity and I will therefore allow a discount of 25 per cent, by reason of the utilitarian value of those pleas of guilty.

FACTS

The facts are agreed and are set out in an agreed document. Re-stated as to their form, but not substance, they are as follows. The facts revolve around…

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 Ismael

Details

AGLC: R v Ismael [2022] NSWDC 560
Case: [2022] NSWDC 560
Decision Date: 04 February 2022

CaseChat Overview and Summary

Ismael was convicted and sentenced in the Supreme Court of New South Wales for supplying a commercial quantity of MDMA, possessing an unauthorised pistol, and dealing with proceeds of crime. The court was tasked with determining an appropriate sentence for these offences. The legal issues involved assessing the seriousness of each offence, the need for deterrence and denunciation, and the circumstances surrounding the commission of the crimes. The court considered the cumulative impact of the offences, Ismael's criminal history, and the need for specific and general deterrence.

In delivering the sentence, the court gave careful consideration to the aggravating and mitigating factors. The court noted the significant quantity of drugs involved in the supply offence, the illegal possession of a firearm, and the involvement with criminal proceeds. The court found that these offences were serious and warranted a substantial sentence. However, the court also took into account mitigating factors such as Ismael's cooperation with authorities and his remorse. The court found that special circumstances existed, allowing for an extended non-parole period. The court concluded that an aggregate term of imprisonment of 4 years 10 months, with a non-parole period of 3 years, was appropriate.

The court's reasoning was based on the need to provide adequate punishment and deterrence for the serious nature of the offences. The court emphasised the importance of protecting the community from drug-related harm and the dangers posed by illegal firearms. The court also considered the need to address the proceeds of crime to prevent the benefits of illegal activities. The court ordered the forfeiture of proceeds as per the Short Minute of Consent Order. The final orders included the aggregate sentence and the forfeiture of criminal proceeds.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 4 years 10 months with a NPP of 3 years (27/10/20-26/10/23).

I find special circumstances.

The indicative sentences are:

Seq 1 Supply commercial qty methylamphetamine – 4 years 3 months with NPP 2 years 7 months (3 matters on Form 1 taken into account)

Seq 11 Possess pistol – 2 years 9 months with NPP 1 year 8 months (Form 1 taken into account).

Seq 12 Proceeds of crime – 18 months.

I make the forfeiture order as per the Short Minute of Consent Order signed and dated by me today.

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 Ismael [2022] NSWDC 560
Hearing dates:	10/12/21, 4/2/22
Date of orders:	4/2/22
Decision date:	04 February 2022
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 4 years 10 months with a NPP of 3 years (27/10/20-26/10/23). I find special circumstances. The indicative sentences are: Seq 1 Supply commercial qty methylamphetamine – 4 years 3 months with NPP 2 years 7 months (3 matters on Form 1 taken into account) Seq 11 Possess pistol – 2 years 9 months with NPP 1 year 8 months (Form 1 taken into account). Seq 12 Proceeds of crime – 18 months. I make the forfeiture order as per the Short Minute of Consent Order signed and dated by me today.
Catchwords:	Crime – Sentence – Supply commercial quantity of MDMA – Possess unauthorised pistol – Dealing with proceeds of crime
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Commonwealth DPP v De La Rosa [2010] NSWCCA 194 Doudar v R [2021] NSWCCA 37 Mbele v R [2021] NSWCCA 182 Moodie v R [2020] NSWCCA 16 Muldrock v R [2011] 244 CLR 120 Parente v R [2017] NSWCCA 284 Veen v R (No.2) (1998) 164 CLR 465
Category:	Sentence
Parties:	NSW DPP – Crown Michael Ismael - Offender
Representation:	Ms L Robeau for Crown Mr A Williams for Offender
File Number(s):	2020/307798