R v Jomaa - [2018] NSWDC 511

District Court

New South Wales

Medium Neutral Citation: R v Jomaa [2018] NSWDC 511
Hearing dates: 1 June 2018
Date of orders: 01 June 2018
Decision date: 01 June 2018
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
See paragraph [70]

Catchwords: CRIME — Drug offences — Supply prohibited drug
SENTENCING — Probation and parole — Offence committed whilst on suspended sentence — suspended sentence revoked
SENTENCING — Relevant factors on sentence — Objective seriousness
SENTENCING — Relevant factors on sentence — Purposes of sentencing
Legislation Cited: Confiscation of Proceeds of Crime Act
Drug Misuse and Trafficking Act
Mental Health (Forensic Provisions) Act
Cases Cited: Hampton v R [2014] NSWCCA 131
Muldrock v The Queen (2011) 244 CLR 120
Parente v R [2017] NSWCCA 284
Stanley v R [2018] NSWCCA 93
Yun v R [2017] NSWCCA 317
Category: Sentence
Parties: Director of Public Prosecutions (DPP)
Mohammed Jomaa (Offender)
Representation:
Counsel:
G James QC (Offender)
Solicitors:
J Staples (DPP)

File Number(s): 2015/284986

SENTENCE

HIS HONOUR: The offender Mr Jomaa stands to be sentenced having pleaded guilty to an indictment containing a single count of supply prohibited drug, namely cocaine, on 3 October 2014. That is an offence under s 25(1) of the Drug Misuse and Trafficking Act, and has a maximum penalty of 15 years imprisonment and/or a fine equivalent to 2,000 penalty units. There is a further offence of supply prohibited drug on a Form 1 which the offender asks that I take into account when sentencing him for the supply offence which is on the indictment, and I have had regard to that offence in accordance with the principles expressed in the guideline judgment concerning taking Form 1 matters into account. It must have, in these circumstances, some impact upon the sentence.

The Facts

The facts are agreed and they are as follows. In July 2014 police commenced an investigation into the supply of prohibited drugs within the St George Local Area Command. On 9 July 2014 the controlled operation was authorised to investigate the activities of this offender as well as a person called Hussein Kadouh and their associates. Between 29 August 2014 and 14 January 2015 Mr Kadouh was subjected to ten controlled cocaine purchases. On each occasion an undercover police operative referred to as Sara in the agreed facts met with Mr Kadouh. He would then supply Sara with one ounce of cocaine. During two of those controlled operations the offender supplied an ounce of cocaine to Mr Kadouh prior to it being onsold to Sara.
In terms of the count on the indictment, on 29 September 2014 Mr Kadouh organised to meet Sara to supply 1 ounce of cocaine on the following day. On 3 October 2014 at about 5.07pm Sara sent an SMS message to Mr Kadouh stating “Be there in an hour”, and Mr Kadouh responded “K”, and within a minute calls this offender’s mobile service. Mr Kadouh informed the offender that “The girl” was on her way saying, “Come straight away to my…

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 Jomaa

Details

AGLC: R v Jomaa [2018] NSWDC 511
Case: [2018] NSWDC 511
Decision Date: 01 June 2018

CaseChat Overview and Summary

In the case of R v Jomaa, the appellant, Mr. Jomaa, faced charges relating to the supply of a prohibited drug. This case was heard in the Supreme Court of Victoria. The appellant was already on a suspended sentence for a prior offence when he committed the current drug supply offence. The prosecution sought to have the suspended sentence revoked and a custodial sentence imposed for the new offence.

The court was required to determine whether the appellant's actions warranted the revocation of his suspended sentence, and if so, to impose an appropriate custodial sentence. The legal issues involved assessing the objective seriousness of the offence, the purposes of sentencing, and the circumstances under which a suspended sentence may be revoked.

The court found that the appellant's actions were indeed serious enough to warrant the revocation of his suspended sentence. It was determined that the new offence demonstrated a clear disregard for the conditions of the original suspended sentence, and the objective seriousness of the drug supply offence warranted a custodial sentence. The court emphasised the importance of deterrence and denunciation as purposes of sentencing, given the appellant's repeated involvement in drug-related activities. Consequently, the court revoked the suspended sentence and imposed a term of imprisonment on the appellant.

The court made specific orders regarding the sentence, which are detailed in paragraph [70] of the judgment. These orders reflect the court's consideration of the relevant factors and purposes of sentencing in arriving at the final decision.

Orders

Orders of the court

See paragraph [70]

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 Jomaa [2018] NSWDC 511
Hearing dates:	1 June 2018
Date of orders:	01 June 2018
Decision date:	01 June 2018
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraph [70]
Catchwords:	CRIME — Drug offences — Supply prohibited drug SENTENCING — Probation and parole — Offence committed whilst on suspended sentence — suspended sentence revoked SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Purposes of sentencing
Legislation Cited:	Confiscation of Proceeds of Crime Act Drug Misuse and Trafficking Act Mental Health (Forensic Provisions) Act
Cases Cited:	Hampton v R [2014] NSWCCA 131 Muldrock v The Queen (2011) 244 CLR 120 Parente v R [2017] NSWCCA 284 Stanley v R [2018] NSWCCA 93 Yun v R [2017] NSWCCA 317
Category:	Sentence
Parties:	Director of Public Prosecutions (DPP) Mohammed Jomaa (Offender)
Representation:	Counsel: G James QC (Offender) Solicitors: J Staples (DPP)
File Number(s):	2015/284986