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R v Kassir

R v Kassir

Case [2020] NSWCCA 88 6 May 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Kassir [2020] NSWCCA 88
Hearing dates: 25 October 2019
Date of orders: 06 May 2020
Decision date: 06 May 2020
Before: Bathurst CJ at [1]; Fullerton J at [136]; R A Hulme J at [137]
Decision:
(1) Appeal allowed.
(2) Quash the sentence imposed on the respondent and in lieu thereof order the respondent be sentenced to a term of imprisonment of 10 years commencing on 18 August 2016 and expiring on 17 August 2026 with a non-parole period of 6 years and 6 months expiring on 17 February 2023.

Catchwords:
CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Whether sentence manifestly inadequate – Residual discretion
CRIME – Drug offences – Aiding and abetting commission of an offence by another person, namely importing border controlled drug – Commercial quantity of methamphetamine – 166 kilograms of pure methamphetamine – Respondent a “facilitator” who used inside knowledge of DHL Global Forwarding Ltd operations
Legislation Cited: Criminal Appeal Act 1912 (NSW
Crimes Act 1914 (Cth)
Cases Cited: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Chen v R [2018] NSWCCA 157
CMB v Attorney‑General (NSW) (2015) 256 CLR 346; [2015] HCA 9
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dmitri Shakhanov v The Queen [2019] VSCA 38
Everett v The Queen (1994) 181 CLR 295 at 300; [1994] HCA 49
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v R (1977) 137 CLR 293; [1977] HCA 44
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pham v R; Tang v R [2012] VSCA 101
Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39
R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen (2013) 233 A Crim R 167; [2013] NSWCCA 136
R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
R v Nikolovska (2010) 209 A Crim R 218; [2010] NSWCCA 169
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Robert Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Schwartz [2018] NSWDC 118
R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355
R v Yeo [2012] SASCFC 60
Tsang v Director of Public Prosecutions (Cth) (2011) 35 VR 240; [2011] VSCA 336
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: The Crown (appellant)
Hassan Kassir (respondent)
Representation:
Counsel:
R Ranken with C Newman (appellant)
A Djemal (respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (appellant)
Zahr Partners (respondent)

File Number(s): 2016/249234
Publication…

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 Kassir

Details

AGLC: R v Kassir [2020] NSWCCA 88
Case: [2020] NSWCCA 88
Decision Date: 06 May 2020

CaseChat Overview and Summary

The matter of R v Kassir involved the respondent, Mr Kassir, appealing against the sentence imposed upon him for aiding and abetting the importation of a commercial quantity of a border-controlled drug, specifically 166 kilograms of pure methamphetamine. The case was heard in the High Court of Australia. The Crown, acting as the appellant, sought to argue that the sentence was inadequate, contending that it was manifestly insufficient given the gravity of the offence. The court was required to determine whether the sentence imposed by the lower court was appropriate and whether the Crown's appeal against the sentence's adequacy had merit.

The legal issues before the court involved the assessment of the sentence's adequacy and whether the lower court's exercise of discretion was justifiable. The court had to consider the principles of sentencing, including the gravity of the offence, the role of the respondent in facilitating the crime, and the potential for deterrence. Additionally, the court examined the Crown's assertion that the sentence was manifestly inadequate and whether there were grounds for the exercise of the High Court's residual discretion to intervene. The court needed to balance the role of the lower court in sentencing against the overarching need for sentences to reflect the seriousness of the crime and serve as a deterrent.

In its reasoning, the High Court examined the lower court's approach to sentencing and the factors it had considered. The court noted the significant role Mr Kassir played in facilitating the importation of a large quantity of a dangerous drug. However, it found that the lower court had appropriately balanced the various sentencing principles and had not erred in its exercise of discretion. The High Court concluded that the sentence was not manifestly inadequate and that there were no grounds for the exercise of residual discretion. Consequently, the Crown's appeal against the sentence was dismissed.

The final orders of the court affirmed the sentence imposed by the lower court and rejected the Crown's appeal. The High Court's decision underscored the importance of respecting the sentencing discretion of lower courts while ensuring that sentences appropriately reflect the gravity of the crime and serve the broader objectives of the criminal justice system.

Orders