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R v Kaddour

R v Kaddour

Case [2005] NSWCCA 303 2 September 2005

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Reported Decision:
156 A Crim R 11

New South Wales

Court of Criminal Appeal

CITATION:
R v KADDOUR [2005] NSWCCA 303
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 May 2005

JUDGMENT DATE:

2 September 2005

JUDGMENT OF:
Hulme J at 1; Barr J at 1; Buddin J at 1

DECISION:
1. The appeal against conviction is dismissed; 2. Grant leave to appeal against sentence; 3. Dismiss the appeal against sentence

PARTIES:
Regina
Kalid Kaddour

FILE NUMBER(S):
CCA 2002/2502

COUNSEL:
Crown: R Cogswell SC/ D Woodburne
Appellant: P Byrne SC/S Odgers SC

SOLICITORS:
Crown: S Kavanagh
Appellant: Galloways

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
00/11/0622

LOWER COURT JUDICIAL OFFICER:
Woods DCJ

2002/2502

HULME J
BARR J
BUDDIN J
Friday, 2 September 2005

R v Khalid KADDOUR

Judgment

1 THE COURT: On 5 February 2001 Khalid Kaddour was arraigned on four charges. In summary they were:

1. That between 1 January and 25 August 1996 at Brookvale and elsewhere he did knowingly take part in the manufacture of a prohibited drug, namely 3/4 – methyl-dioxemethylene amphetamine in an amount not less than the large commercial quantity for that drug.

2. That between 1 January and 25 August 1996 at Brookvale and elsewhere he did knowingly take part in the manufacture of a prohibited drug, namely 3/4 – methyl-dioxemethylene amphetamine in an amount not less than the commercial quantity for that drug.

3. That between 2 April and 26 August 1996 he did knowingly harbour Atilla Koller, an escaped prisoner.

4. That between 18 May and 26 August 1996 he did maliciously damage unit 4/42-44 Chard Road, Brookvale, the property of two named persons.

2 “3/4 Methyl-dioxemethylene amphetamine” is commonly referred to as MDMA and known as “ecstasy”.

3 So far as the charges against the Appellant are concerned, on 10 April 2001 a jury returned a verdict of not guilty in the case of the first, second and third counts but a verdict of guilty to the fourth count and also a verdict of guilty in respect of the statutory alternative under Section 24(1) of the Drug (Misuse and Trafficking) Act, viz taking part in the manufacture of some quantity of the specified drug.

4 Pursuant to Section 32 of the Act the Appellant’s conviction on the alternative charge rendered him liable to imprisonment for 15 years and a fine of 200 penalty units. His conviction on the fourth count rendered him liable to imprisonment for a maximum of 5 years pursuant to Section 195(a) of the Crimes Act.

5 On 17 May 2002, i.e. more than 12 months after the jury’s verdicts, Judge Woods sentenced the Appellant in respect of his drug conviction to imprisonment for 5½ years including a non-parole period of 3 years and 5 months both such periods to commence on 2 March 2003. In respect of the malicious damage charge, the Appellant was sentenced to imprisonment for 1…

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 Kaddour

Details

AGLC: R v Kaddour [2005] NSWCCA 303
Case: [2005] NSWCCA 303
Decision Date: 2 September 2005

CaseChat Overview and Summary

Khalid Kaddour was charged with four counts, including knowingly taking part in the manufacture of MDMA, knowing harbouring an escaped prisoner, and maliciously damaging property. Kaddour was found not guilty of the first three counts but guilty of the statutory alternative under Section 24(1) of the Drug (Misuse and Trafficking) Act and of the fourth count. The appeal against conviction was dismissed, and the appeal against sentence was granted but dismissed. The court held that there were errors in the trial judge's directions on the meaning of taking part in the manufacture of a prohibited drug and on the issue of impossibility or incompetence. However, the court concluded that there was no substantial miscarriage of justice. The court also held that the sentencing judge did not err in his assessment of the sentence. The harsh conditions in which the appellant had been kept in custody were considered as a special circumstance, and the sentences imposed were not excessive.

Orders