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R v Kassis

R v Kassis

Case [2015] NSWDC 178 2 April 2015

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District Court

New South Wales

Medium Neutral Citation: R v Kassis [2015] NSWDC 178
Decision date: 02 April 2015
Jurisdiction: Criminal
Before: Payne DCJ
Decision:
Total effective sentence of 7 years 10 months with a total effective non-parole period of 5 years, comprised of the following:
Count 2: Sentenced to a term of imprisonment of 3 years 9 months with a non-parole period of 2 years 3 months
Count 1 plus Form 1: Sentenced to a term of imprisonment of 7 years 8 months with a non-parole period of 4 years 10 months

Catchwords: CRIMINAL LAW – sentence – knowingly take part in the manufacture of a prohibited drug Nexus greater than the commercial quantity – supply prohibited drug MDMA greater than commercial quantity; CRIMINAL LAW – sentence – fact finding
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 25, 29, 33, 33A
Cases Cited: Aoun v R [2011] NSWCCA 284
Ayshow v R [2011] NSWCCA 240
Briouzguine v R [2014] NSWCCA 264
Diesing v R [2007] NSWCCA 326
Farkas v R [2014] NSWCCA 141
Hill v R [2012] NSWCCA 265
Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444
Mokhaiber v R [2011] NSWCCA 10
R v AB [2011] NSWCCA 229
R v Achurch [2011] NSWCCA 186
R v Campbell [2014] NSWCCA 102
R v Chan [1999] NSWCCA 103
R v DW [2012] NSWCCA 66; 221 A Crim R 63
R v El-Azzi [2004] NSWCCA 455
R v Gao; R v Lim [2007] NSWCCA 343
R v Girard; R v Girard [2004] NSWCCA 170
R v Li [2014] NSWCCA 327
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v X [2004] NSWCCA 93
Simpson v R [2014] NSWCCA 23
Winter v R [2011] NSWCCA 59
Category: Sentence
Parties: Regina (Crown)
Mark Kassis (Offender)
Representation:
Counsel:
A Martin (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Nikola Velcic & Associates (Offender)

File Number(s): 2013/00121689

SENTENCE

Mark Kassis pleaded guilty on 12 December 2014 to two offences in an indictment. Those offences are as follows:

One, between 5 March 2013 and 19 April 2013, at Putney in the State of New South Wales, did knowingly take part in the manufacture of an amount of a prohibited drug, namely, 7,008.63 grams of 4 Bromo-2,5-dimethoxyphenethylamine, which is not less than the commercial quantity applicable to that prohibited drug.

Two, on 19 April 2013, at Putney in the State of New South Wales, did supply an amount of a prohibited drug, namely, 426.5 grams of 3,4-Methylenedioxymethylamphetamine, being an amount which is not less than the commercial quantity applicable to that prohibited drug.

The first offence is contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The amount being not less than the large commercial quantity for that drug, the maximum penalty prescribed for this offence is imprisonment for life and/or 5,000 penalty…

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 Kassis

Details

AGLC: R v Kassis [2015] NSWDC 178
Case: [2015] NSWDC 178
Decision Date: 02 April 2015

CaseChat Overview and Summary

In the case of R v Kassis, the appellant was convicted on two counts related to the manufacture and supply of the prohibited drug MDMA. The case was heard and determined in the court of appeal. The primary legal issues the court was required to address involved the determination of an appropriate sentence for the appellant, considering the nature and extent of his involvement in the drug manufacturing and supply operation. The court also needed to assess the factual findings made by the trial judge concerning the appellant’s role and the quantity of drugs involved.

The court examined the principles of sentencing for drug-related offences, focusing on the seriousness of the offence, the degree of the offender's culpability, and the need for deterrence and denunciation. The appellant argued that the trial judge had erred in finding that he was the principal in the manufacturing process and had supplied a quantity of drugs greater than the commercial amount. The court, however, found that the trial judge had correctly assessed the evidence and had not erred in his factual findings. The court upheld the trial judge's assessment of the appellant’s role and the quantity of drugs, thereby affirming the sentence imposed.

Consequently, the court concluded that the sentence imposed by the trial judge was appropriate, reflecting the seriousness of the offences and the need to protect the community. The appeal against sentence was dismissed, and the original sentence was upheld. The appellant was to serve a total effective sentence of 7 years and 10 months with a total effective non-parole period of 5 years, as determined by the trial judge.

Orders

Orders of the court

Total effective sentence of 7 years 10 months with a total effective non-parole period of 5 years, comprised of the following:

Count 2: Sentenced to a term of imprisonment of 3 years 9 months with a non-parole period of 2 years 3 months

Count 1 plus Form 1: Sentenced to a term of imprisonment of 7 years 8 months with a non-parole period of 4 years 10 months

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 Kassis [2015] NSWDC 178

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Cases cited in this decision · 26 of 26 shown

R v Li
[2014] NSWCCA 327 Para 33

…ars and 10 years in respect of count two, are not “mere formality, but a yardstick created by the legislature to guide sentencing courts”: R v Li [2014] NSWCCA 327 at [55], also at [51] (Fullerton J).…
Briouzguine v R
[2014] NSWCCA 264 Para 41

…ole period offence of supplying not less than the large commercial quantity of a prohibited drug. The case was recently considered in Briouzguine v R [2014] NSWCCA 264.…
MLP v R
[2014] NSWCCA 183 Para 41

…“Most recently in MLP v R [2014] NSWCCA 183 at [41] to [44], Bellew J (Macfarlan JA and Adamson J agreeing) commented upon the difficulties which are prone to arise from comparative exercises based on a limited number of cases presented to the Court as demonstrating some established sentencing range for particular o…
Farkas v R
[2014] NSWCCA 141 Para 36

…No expert evidence concerning purity was tendered: Farkas v R [2014] NSWCCA 141.…
R v Campbell
[2014] NSWCCA 102 Para 32

…23 at [25] to [27] (Hoeben CJ at CL). Put another way, each is a serious example of the behaviour made criminal by each of the sections: R v Campbell [2014] NSWCCA 102 at [27]-[33] (Simpson J).…
Simpson v R
[2014] NSWCCA 23 Para 32

…ces in the indictment are objectively serious. They are given the amounts involved and the basis upon which I am sentencing the prisoner: Simpson v R [2014] NSWCCA 23 at [25] to [27] (Hoeben CJ at CL). Put another way, each is a serious example of the behaviour made criminal by each of the sections: R v Campbell [2…
Barbaro v The Queen
[2014] HCA 2 Para 41

…to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2, 305 ALR 323 at [41]. 43 Thirdly, the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48].…
Hill v R
[2012] NSWCCA 265 Para 41

…The case of Hill v R [2012] NSWCCA 265 did consider a standard non-parole period offence of supplying not less than the large commercial quantity of a prohibited drug. The case was recently considered in Briouzguine v R [2014] NSWCCA 264.…
RLS v R
[2012] NSWCCA 236 Para 132

…arly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that th…
R v DW
[2012] NSWCCA 66 Para 38

…I turn now to the emphasis placed in the written and oral submissions by the defence on R v DW [2012] NSWCCA 66; 221 A Crim R 63. The relevance of this case is greatly diminished and indeed misplaced if it is relevant at all, as the case did not consider an offence with a standard non-parole period in respect of th…
Aoun v R
[2011] NSWCCA 284

…dment (Standard Minimum Sentencing) Act 2002 (NSW) Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 25, 29, 33, 33A Cases Cited: Aoun v R [2011] NSWCCA 284 Ayshow v R [2011] NSWCCA 240 Briouzguine v R [2014] NSWCCA 264 Diesing v R [2007] NSWCCA 326 Farkas v R [2014] NSWCCA 141 Hill v R [2012] NSWCCA 265 Hosseini v…
Ayshow v R
[2011] NSWCCA 240

…ncing) Act 2002 (NSW) Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 25, 29, 33, 33A Cases Cited: Aoun v R [2011] NSWCCA 284 Ayshow v R [2011] NSWCCA 240 Briouzguine v R [2014] NSWCCA 264 Diesing v R [2007] NSWCCA 326 Farkas v R [2014] NSWCCA 141 Hill v R [2012] NSWCCA 265 Hosseini v R [2009] NSWCCA 52; 193 A Cr…
R v AB
[2011] NSWCCA 229 Para 11

…I am of the view that 25 percent is appropriate even though evidence had to be given in respect of disputed facts: R v AB [2011] NSWCCA 229 at [27].…
R v Achurch
[2011] NSWCCA 186 Para 45

…1; 60 NSWLR 168 at [172], a different view of this matter was taken. Also R v Chan [1999] NSWCCA 103, R v Gao; R v Lim [2007] NSWCCA 343, R v Achurch [2011] NSWCCA 186 at [88]-[97], and Aoun at [65]. These cases speak of the limited relevance of non-dissemination of drugs into the community. I only give little weigh…
Winter v The Queen
[2011] NSWCCA 59 Para 57

…ortunately, the wives and children of prisoners are almost inevitably affected by the incarceration of the husband and/or father. See also Winter v R [2011] NSWCCA 59.…
Mokhaiber v R
[2011] NSWCCA 10 Para 56

…In my view, this case is far removed from being exceptional. In Mokhaiber v R [2011] NSWCCA 10, Price J said at [30]:…
Wu v The Queen
[2010] NSWCCA 286 Para 30

…“In relation to the defence submission in respect of the purity of the prohibited drug Nexus in this matter, Crown refer to the case of Wu v R [2010] NSWCCA 286 at [30], in which the Court stated: ‘There is no doubt that in some cases purity is important but that is particularly so when the drugs are of a nature suc…
R v Nikolovska
[2010] NSWCCA 153 Para 117

…h such statements of principle, this Court has emphasised the need to adopt a careful approach when asked to utilise statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compa…
Hosseini v R
[2009] NSWCCA 52 Para 39

…The standard non-parole period does apply to the offence of knowingly take part: Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444 at [53]:…
R v Gao
[2007] NSWCCA 343 Para 45

…ase of R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [172], a different view of this matter was taken. Also R v Chan [1999] NSWCCA 103, R v Gao; R v Lim [2007] NSWCCA 343, R v Achurch [2011] NSWCCA 186 at [88]-[97], and Aoun at [65]. These cases speak of the limited relevance of non-dissemination of drugs into the comm…
Diesing v R
[2007] NSWCCA 326

…, ss 24, 25, 29, 33, 33A Cases Cited: Aoun v R [2011] NSWCCA 284 Ayshow v R [2011] NSWCCA 240 Briouzguine v R [2014] NSWCCA 264 Diesing v R [2007] NSWCCA 326 Farkas v R [2014] NSWCCA 141 Hill v R [2012] NSWCCA 265 Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444 Mokhaiber v R [2011] NSWCCA 10 R v AB [2011] NSWCCA 229…
R v El-Azzi
[2004] NSWCCA 455 Para 40

…The case of R v El-Azzi [2004] NSWCCA 455 also did not consider an offence with a standard non-parole period. The offending took place between 1995 and 1996, well before 1 February 2003. Standard non-parole periods, when first enacted, applied and still apply to offences committed after 1 February 2003: Act 90 of 20…
R v Girard
[2004] NSWCCA 170 Para 57

…It is a subjective circumstance: R v X [2004] NSWCCA 93, R v Girard; R v Girard [2004] NSWCCA 170 at [21] and [22]. One though, in the circumstances of this case, I give minimal weight to. Unfortunately, the wives and children of prisoners are almost inevitably affected by the incarceration of the husband and/or fat…
R v Way
[2004] NSWCCA 131 Para 45

…f the proposition this feature lessens the criminality. This was not a case though involving an undercover operative. Further, in the case of R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [172], a different view of this matter was taken. Also R v Chan [1999] NSWCCA 103, R v Gao; R v Lim [2007] NSWCCA 343, R v Achurch […
R v X
[2004] NSWCCA 93 Para 57

…It is a subjective circumstance: R v X [2004] NSWCCA 93, R v Girard; R v Girard [2004] NSWCCA 170 at [21] and [22]. One though, in the circumstances of this case, I give minimal weight to. Unfortunately, the wives and children of prisoners are almost inevitably affected by the incarceration of the husband and/or fa…
R v Chan
[1999] NSWCCA 103 Para 45

…ercover operative. Further, in the case of R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [172], a different view of this matter was taken. Also R v Chan [1999] NSWCCA 103, R v Gao; R v Lim [2007] NSWCCA 343, R v Achurch [2011] NSWCCA 186 at [88]-[97], and Aoun at [65]. These cases speak of the limited relevance of non-…

Legislation cited in this decision · 3

Drug Misuse and Trafficking Act 1985 (NSW)
24, 25, 29, 33, 33A 6 mentions (from Para 2)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
1 mention (from Para 40)

Medium Neutral Citation:	R v Kassis [2015] NSWDC 178
Decision date:	02 April 2015
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Total effective sentence of 7 years 10 months with a total effective non-parole period of 5 years, comprised of the following: Count 2: Sentenced to a term of imprisonment of 3 years 9 months with a non-parole period of 2 years 3 months Count 1 plus Form 1: Sentenced to a term of imprisonment of 7 years 8 months with a non-parole period of 4 years 10 months
Catchwords:	CRIMINAL LAW – sentence – knowingly take part in the manufacture of a prohibited drug Nexus greater than the commercial quantity – supply prohibited drug MDMA greater than commercial quantity; CRIMINAL LAW – sentence – fact finding
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 25, 29, 33, 33A
Cases Cited:	Aoun v R [2011] NSWCCA 284 Ayshow v R [2011] NSWCCA 240 Briouzguine v R [2014] NSWCCA 264 Diesing v R [2007] NSWCCA 326 Farkas v R [2014] NSWCCA 141 Hill v R [2012] NSWCCA 265 Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444 Mokhaiber v R [2011] NSWCCA 10 R v AB [2011] NSWCCA 229 R v Achurch [2011] NSWCCA 186 R v Campbell [2014] NSWCCA 102 R v Chan [1999] NSWCCA 103 R v DW [2012] NSWCCA 66; 221 A Crim R 63 R v El-Azzi [2004] NSWCCA 455 R v Gao; R v Lim [2007] NSWCCA 343 R v Girard; R v Girard [2004] NSWCCA 170 R v Li [2014] NSWCCA 327 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v X [2004] NSWCCA 93 Simpson v R [2014] NSWCCA 23 Winter v R [2011] NSWCCA 59
Category:	Sentence
Parties:	Regina (Crown) Mark Kassis (Offender)
Representation:	Counsel: A Martin (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Nikola Velcic & Associates (Offender)
File Number(s):	2013/00121689