R v Issa - [2002] NSWCCA 206

CITATION: R v Issa [2002] NSWCCA 206

FILE NUMBER(S): CCA 60338 OF 2000

HEARING DATE(S): 8 May 2002

JUDGMENT DATE:
21 June 2002

PARTIES :

REGINA
v
MOHAMMED ILYAS ISSA

JUDGMENT OF: Sheller JA at 1; Levine J at 2; Simpson J at 49

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0358

LOWER COURT JUDICIAL
OFFICER : WILLIAMS DCJ

COUNSEL :
DJ BREZNIAK
(Appellant)
RA HULME
(Crown)

SOLICITORS:
ANDREWS
(Appellant)
SE O'CONNOR
(Crown)

CATCHWORDS: Plea of guilty - "under pressure" - sentencing - miscarriage - inclusion of life sentence offence in Form 1 - Crimes (Sentencing Procedure) Act 1999 s33(4)

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985

CASES CITED:
Meissner v The Queen (1994-1995) 184 CLR 132
Reg v Bayliss [2002] NSW CCA 11

DECISION: Apeal against conviction dismissed; leave to appeal against sentence granted; appeal allowed; matter remitted to District Court

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60338 0F 2000

SHELLER JA
LEVINE J
SIMPSON J
Friday 21 June 2002

REGINA v Mohammed Ilyas ISSA

Judgment

1 SHELLER JA: I have had the benefit of reading Levine J’s reasons for judgment in draft. I agree with them and the orders he proposes.

2 LEVINE J: On 4 February 1999 the appellant was arrested and charged with three counts pursuant to s 25 (2), Drug Misuse and Trafficking Act, 1985. The first offence was that on 8 January 1999 the appellant supplied the prohibited drug heroin (not less than commercial quantity) an offence which carries a maximum penalty of 20 years imprisonment. The second charge related to the supply of heroin (not less than large commercial quantity) on 18 January 1999, an offence which carries a penalty of life imprisonment. The third offence relating to the supply of heroin (not less than large commercial quantity) was said to have occurred on 4 February 1999. That offence also carried a maximum penalty of life imprisonment.

3 On 31 March 2000 in the Sydney District Court the appellant entered a plea of guilty to a single count being the second charge referred to above, namely the supply of not less than large commercial quantity committed on 18 January 1999. The offences committed on 8 January 1999 and 4 February 1999 were taken into account on a Form 1 on sentence pursuant to the provisions of the Criminal Procedure Act, 1986.

4 In respect of the offence in the indictment to which appellant pleaded guilty, his Honour Judge Williams sentenced the appellant to 8 years imprisonment to date from 4 February 1999 specifying a 6 year non-parole period to expire on 3 February 2005.

5 The Crown case on sentence may be summarised as follows.

6 On 9 December 1998 the Australian Federal Police (“AFP”) commenced a covert operation investigating the storage of a large quantity of heroin in a location in Sydney. A mobile telephone number was distributed to people suspected of involvement in the storage…

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 Issa

Details

AGLC: R v Issa [2002] NSWCCA 206
Case: [2002] NSWCCA 206
Decision Date: 21 June 2002

CaseChat Overview and Summary

The case of R v Issa was heard by the New South Wales Supreme Court. The defendant, Issa, pleaded guilty to various charges, including charges that warranted a life sentence. Issa later sought to withdraw his guilty plea on the basis that it had been entered under pressure. The central issue for the court was whether the inclusion of the life sentence offence in Form 1 complied with section 33(4) of the Crimes (Sentencing Procedure) Act 1999, and whether such inclusion constituted a miscarriage of justice.

The court examined whether the inclusion of the life sentence offence in Form 1, which was used to record the defendant's guilty pleas, was compliant with statutory requirements. It was noted that the form should accurately reflect the charges and the pleas entered. The court also considered whether the inclusion of the life sentence offence, which Issa claimed was entered under duress, led to a miscarriage of justice. The court weighed the defendant's contention that he was pressured into entering the plea against the procedural requirements of the legislation and the overall fairness of the proceeding.

Ultimately, the court found that the inclusion of the life sentence offence in Form 1 did not contravene section 33(4) of the Crimes (Sentencing Procedure) Act 1999. The court determined that the form accurately reflected the charges and pleas, and that the defendant had not demonstrated that the inclusion of the life sentence offence led to a miscarriage of justice. Consequently, Issa's application to withdraw his guilty plea was dismissed.

No further orders were made by the court.

Orders