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R v Karanouh

R v Karanouh

Case [2023] NSWDC 142 28 April 2023

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Karanouh [2023] NSWDC 142
Hearing dates: 4 April 2023
Date of orders: 28 April 2023
Decision date: 28 April 2023
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1) In respect of the offence to which the offender has pleaded guilty, the offender is convicted.
(2) I impose a sentence of imprisonment of 6 years, 9 months to date from 14 December 2021 and to expire on 13 September 2028.
(3) I impose a non-parole period of 4 years, 7 months to expire on 13 July 2026.
(4) The earliest date the offender is eligible to apply for release on parole is 13 July 2026.

Catchwords:
CRIME – sentencing – supply large commercial quantity of prohibited drug – parity principles – backdating sentence

Legislation Cited:
Crimes Act 1900 (NSW) s 193C
Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 3A, 21A(2)
Drug Misuse and Trafficking Act 1985 (NSW) 10(1), 25(1) and 25(2)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
Filippou v R [2015] HCA 29; 256 CLR 47
Green v R; Quinn v R (2011) 244 CLR 462
KR v R [2012] NSWCCA 32
Petkos v R [2020] NSWCCA 55
Pham v R [2013] NSWCCA 217
Rakielbakhour v DPP [2020] NSWSC 323
Roberts (pseudonym) v R [2019] NSWCCA 102
R v DW [2012] NSWCCA 66
R v Olbrich [1999] HCA 54; 199 CLR 270; 73 ALJR 1550
R v Shankley [2003] NSWCCA 253
Tepania v R [2018] NSWCCA 247
Wat v R [2017] NSWCCA 62

Category: Sentence
Parties: Rex
Mahmoud (aka Rabee) Karanouh
Representation:
Counsel:
Mr D Grippi (offender)
Solicitors:
Office of the Department of Public Prosecutions (NSW) (Crown)
Sans Law (offender)

File Number(s): 2021/345467, 2021/295808
Publication restriction: None

JUDGMENT

Remarks on sentence

The offender appeared at the Downing Centre Local Court on 15 December 2022 and pleaded guilty to one charge of supply prohibited drug, Gamma-Butyrolactone (“GBL”), not less than the large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The plea of guilty was adhered to at the sentence hearing on 4 April 2023. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence of supply prohibited drug not less than the large commercial quantity is life imprisonment. In accordance with Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999, the offence has a standard non-parole period of 15 years. The maximum penalty of life imprisonment and the standard non-parole period of 15 years is an indication of its seriousness and acts as a sentencing guidepost or reference point.
In addition to the one substantive matter, the offender asks that when passing sentence, the Court take into account the following five additional offences on a Form 1:

2021/354467

Seq 11 – Possess…

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 Karanouh

Details

AGLC: R v Karanouh [2023] NSWDC 142
Case: [2023] NSWDC 142
Decision Date: 28 April 2023

CaseChat Overview and Summary

In the case of R v Karanouh, the defendant, who has pleaded guilty to the supply of a large commercial quantity of a prohibited drug, faced sentencing before the court. The nature of the offence, as well as the circumstances surrounding the crime, necessitated a thorough examination of the legal principles relevant to sentencing for such a serious drug-related offence. The matter was heard in the higher courts of Australia, with the presiding judge tasked with determining an appropriate sentence that reflects both the gravity of the offence and the principles of parity in sentencing.

The court was required to address several key legal issues, including the appropriate application of parity principles in determining the sentence. The defendant's legal representatives argued for a sentence that would reflect the offender's cooperation with authorities and other mitigating factors. Conversely, the prosecution urged the court to impose a sentence that would adequately reflect the seriousness of the crime and its impact on the community. The court had to balance these considerations, ensuring that the sentence imposed was both proportionate to the crime and consistent with sentences handed down in similar cases.

In delivering the judgment, the judge meticulously examined the principles of parity in sentencing, taking into account the defendant's plea of guilty and other mitigating factors. The court found that the defendant's actions warranted a substantial sentence, reflecting the gravity of the crime. The judge imposed a sentence of imprisonment for a term of 6 years and 9 months, with a non-parole period of 4 years and 7 months. The sentence was backdated to the date of the defendant's initial detention, ensuring that the defendant would not unduly benefit from the time spent on remand. The judge concluded that this sentence was appropriate given the circumstances and the need to maintain consistency with sentences imposed in similar cases.

The final orders of the court included a conviction for the offence to which the defendant had pleaded guilty, a sentence of imprisonment for 6 years and 9 months, with a non-parole period of 4 years and 7 months. The earliest date for parole eligibility was set as 13 July 2026, ensuring that the defendant would serve the majority of the sentence before being considered for release on parole.

Orders

Orders of the court

(1) In respect of the offence to which the offender has pleaded guilty, the offender is convicted.

(2) I impose a sentence of imprisonment of 6 years, 9 months to date from 14 December 2021 and to expire on 13 September 2028.

(3) I impose a non-parole period of 4 years, 7 months to expire on 13 July 2026.

(4) The earliest date the offender is eligible to apply for release on parole is 13 July 2026.

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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Citations

AGLC Citation

R v Karanouh [2023] NSWDC 142

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

Rakielbakhour v DPP
[2020] NSWSC 323 Para 68

…ilitation whilst in custody given the effect, amongst other matters, of the Covid-19 pandemic, citing the judgment of Hamill J in Rakielbakhour v DPP [2020] NSWSC 323. It was contended that in respect to rehabilitation the court would note that being in custody was more onerous given his needs for drug rehabilitati…
Petkos v R
[2020] NSWCCA 55 Para 64

…rd was a factor which the court would consider when assessing the seriousness of the offending. The offender referred to the decision in Petkos v R [2020] NSWCCA 55 that, in addition to the weight of the drugs, the financial reward received or anticipated by the offender was relevant to the objective gravity of the…
Roberts (a Pseudonym) v R
[2019] NSWCCA 102 Para 64

…involvement in the overall supply was determinative of the objective seriousness of the offending; in this respect, citing Roberts (pseudonym) v R [2019] NSWCCA 102. It was submitted that it was an error to place too much emphasis on the weight of the prohibited drugs although this must be considered in the context…
Tepania v The Queen
[2018] NSWCCA 247 Para 69

…the offence fell well below the mid-range and that this was a relevant consideration in respect to the standard non-parole period citing Tepania v R [2018] NSWCCA 247 at [109] – [112].…
Wat v R
[2017] NSWCCA 62 Para 67

…as submitted this fact was not to be considered as an aggravating factor pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act citing Wat v R [2017] NSWCCA 62.…
Giang v R
[2017] NSWCCA 25 Para 76

…fied earlier authorities that supply to a police informant did not assist in reducing the moral culpability of the offender. In Cam Huynh Giang v R [2017] NSWCCA 25 Latham J (with whom Hoeben CJ at CL and Walton J agreed) said the following in respect to a submission that the drugs were not disseminated in the comm…
Filippou v The Queen
[2015] HCA 29 Para 64

…The offender, citing Filippou v R [2015] HCA 29; 256 CLR 47, noted that the court must sentence on the basis of those facts which are proved to the requisite standard. Reference was also made to R v Olbrich [1999] HCA 54; 199 CLR 270; 73 ALJR 1550 that the level of the offender’s involvement in the overall suppl…
AB v R
[2013] NSWCCA 273 Para 77

…In AB v R [2013] NSWCCA 273, Johnson J (with whom Hoeben CJ at CL and Bellew J agreed) observed the following at [92]:…
Pham v R
[2013] NSWCCA 217 Para 72

…In Pham v R [2013] NSWCCA 217 McCallum J concluded at [27] that:…
R v DW
[2012] NSWCCA 66 Para 66

…The offender contended that the judgment of R S Hulme J in R v DW [2012] NSWCCA 66 sought to qualify earlier authorities that supply to a police informant did not assist in reducing the moral culpability of the offender. It was contended that while any reduction in criminality was to be small, the primary submissio…
R v Calcutt
[2012] NSWCCA 40

…a very large quantity of the relevant prohibited drug with the potential to cause a great deal of harm both individually and socially: R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505 at 524 [73] .” (Emphasis added)…
KR v R
[2012] NSWCCA 32 Para 70

…need not look at the differing roles with great precision although the difference in culpability was a relevant factor on sentence, citing KR v R [2012] NSWCCA 32 at [18] – [19].…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 87

…s of differing charges faced by differing offenders, the majority of the High Court (French CJ, Crennan and Kiefel JJ) stated in Green v R; Quinn v R (2011) 244 CLR 462 at [30]:…
R v Achurch
[2011] NSWCCA 186

…t actually disseminated into the community, that the moral culpability of an offender is not thereby reduced (see the cases gathered in R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at 166-168 [88]-[100]). This was a very large quantity of the relevant prohibited drug with the potential to cause a great deal of ha…
Prculovski v R
[2010] NSWCCA 274 Para 43

…or the planning is significant, that is, more than might be expected in the lowest level of offending for this type of offence” Prculovski v R [2010] NSWCCA 274 at [43] (Howie AJ, McClellan CJ at CL agreeing); Farkas v R (2014) 243 A Crim R 388; NSWCCA 141 at [62] (Campbell J, RA Hulme J agreeing).”…
R v Shankley
[2003] NSWCCA 253 Para 82

…to increase the objective seriousness of the offence, but is relevant to issues of retribution, deterrence and protection of society; R v Shankley [2003] NSWCCA 253.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 4

…nciated by the Court of Criminal Appeal in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.…
R v Olbrich
[1999] HCA 54 Para 64

…47, noted that the court must sentence on the basis of those facts which are proved to the requisite standard. Reference was also made to R v Olbrich [1999] HCA 54; 199 CLR 270; 73 ALJR 1550 that the level of the offender’s involvement in the overall supply was determinative of the objective seriousness of the o…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
193C 2 mentions (from Para 2)
Crimes (Sentencing Procedure) Act 1990 (NSW)
1 mention (from Para 79)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Karanouh [2023] NSWDC 142
Hearing dates:	4 April 2023
Date of orders:	28 April 2023
Decision date:	28 April 2023
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) In respect of the offence to which the offender has pleaded guilty, the offender is convicted. (2) I impose a sentence of imprisonment of 6 years, 9 months to date from 14 December 2021 and to expire on 13 September 2028. (3) I impose a non-parole period of 4 years, 7 months to expire on 13 July 2026. (4) The earliest date the offender is eligible to apply for release on parole is 13 July 2026.
Catchwords:	CRIME – sentencing – supply large commercial quantity of prohibited drug – parity principles – backdating sentence
Legislation Cited:	Crimes Act 1900 (NSW) s 193C Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 3A, 21A(2) Drug Misuse and Trafficking Act 1985 (NSW) 10(1), 25(1) and 25(2)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. Filippou v R [2015] HCA 29; 256 CLR 47 Green v R; Quinn v R (2011) 244 CLR 462 KR v R [2012] NSWCCA 32 Petkos v R [2020] NSWCCA 55 Pham v R [2013] NSWCCA 217 Rakielbakhour v DPP [2020] NSWSC 323 Roberts (pseudonym) v R [2019] NSWCCA 102 R v DW [2012] NSWCCA 66 R v Olbrich [1999] HCA 54; 199 CLR 270; 73 ALJR 1550 R v Shankley [2003] NSWCCA 253 Tepania v R [2018] NSWCCA 247 Wat v R [2017] NSWCCA 62
Category:	Sentence
Parties:	Rex Mahmoud (aka Rabee) Karanouh
Representation:	Counsel: Mr D Grippi (offender) Solicitors: Office of the Department of Public Prosecutions (NSW) (Crown) Sans Law (offender)
File Number(s):	2021/345467, 2021/295808
Publication restriction:	None