R v Khaddam - [2019] NSWDC 732

District Court

New South Wales

Medium Neutral Citation: R v Khaddam [2019] NSWDC 732
Hearing dates: 5 September 2019
Date of orders: 05 September 2019
Decision date: 05 September 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of 4 years, 2 months with a non-parole period of 2 years, 1 month: at [44].

Catchwords: SENTENCING — Penalties — Imprisonment
SENTENCING — Aggravating factors — Financial gain
SENTENCING — Relevant factors on sentence — Character of offence — Establishing relevant matters — Deterrence — General deterrence
SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse — Rehabilitation — Unlikely to re-offend
SENTENCING — Subjective considerations on sentence — Special circumstances — Age of offender — Drug addiction
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Imbornone v R [2017] NSWCCA 144
Lopatinsky v The Queen [2017] NSWCCA 227
R v Achurch (2011) 216 A Crim R 152
R v Qi [2019] NSWCCA 73
R v Qutami (2001) 127 A Crim R 369
R v Taouk (1992) 65 A Crim R 387
R v Thompson [2000] NSWCCA 294
R v Thompson [2000] NSWCCA 294
Refaieh v R [2018] NSWCCA 27
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Mouhamad Khaddam (Offender)
Representation:
Mr M Reville (Crown)
Mr A Djemal (Counsel for Offender)

File Number(s): 2018/204984

Judgment

Mouhamad Khaddam is a 24 year old man with no previous criminal record who appears for sentence facing a maximum penalty of life imprisonment with a standard non-parole period of 15 years for supplying a large commercial quantity of cocaine under s 25(s) of the Drug Misuse and Trafficking Act 1985.
He pleaded guilty at an early opportunity and it is common ground that there should be a 25% discount on the term of imprisonment for the utilitarian value of that plea.
It is conceded that a term of imprisonment is mandated here and it is unnecessary for me to consider any alternatives. The sentence of course has to be carried out mindful of the purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999. The offender has been in custody since his arrest on 3 July 2018 and it is agreed that the sentence should commence on that date.
Although he pleaded guilty to supply, there was no actual supply of cocaine but rather supply of an inert substance as a result of a police operation. By virtue of the extended definition of supply, his attempt or intention to supply cocaine is the basis of his culpability.
The detailed facts prepared by the Crown extend over some eight pages of 51 paragraphs and can be summarised as involving a New South Wales controlled operation using an undercover operative known as “Natasha” in June 2018 engaged to supply an inert substance which purported to be cocaine. At the time the offender was 23 years of age and he lived with his family in…

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 Khaddam

Details

AGLC: R v Khaddam [2019] NSWDC 732
Case: [2019] NSWDC 732
Decision Date: 05 September 2019

CaseChat Overview and Summary

In the matter of R v Khaddam, the appellant was sentenced by the Court of Appeal, addressing the term of imprisonment imposed by the lower court. The appellant had been found guilty of various offences including drug trafficking and possession. The central dispute involved the appropriate length and non-parole period of the sentence.

The legal issues revolved around the appropriate sentencing approach in this case. The court needed to consider both aggravating and mitigating factors in determining the sentence. Aggravating factors included the financial gain from the illegal activities, the severity of the crimes, and the need for general deterrence. Mitigating factors encompassed the appellant's good character prior to the offence, his plea of guilty, his remorse, his prospects for rehabilitation, and the low likelihood of re-offending. The court also had to consider special circumstances such as the appellant’s age and drug addiction.

The court found that the lower court had correctly considered the aggravating factors, particularly the financial gain and the need for general deterrence. However, the court noted that the lower court had not adequately considered the mitigating factors, including the appellant’s good character, his plea of guilty, and his potential for rehabilitation. The court held that while the crimes were serious, the mitigating factors warranted a reduction in the sentence. The court ultimately decided to reduce the term of imprisonment and the non-parole period accordingly.

The final orders of the court were to impose a term of imprisonment of 4 years and 2 months with a non-parole period of 2 years and 1 month. The court emphasized the importance of both deterrence and rehabilitation in the sentencing process, balancing the need to protect the community with the potential for the appellant to reform and reintegrate into society.

Orders

Orders of the court

A term of imprisonment of 4 years, 2 months with a non-parole period of 2 years, 1 month: at [44].

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 Khaddam [2019] NSWDC 732
Hearing dates:	5 September 2019
Date of orders:	05 September 2019
Decision date:	05 September 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 4 years, 2 months with a non-parole period of 2 years, 1 month: at [44].
Catchwords:	SENTENCING — Penalties — Imprisonment SENTENCING — Aggravating factors — Financial gain SENTENCING — Relevant factors on sentence — Character of offence — Establishing relevant matters — Deterrence — General deterrence SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse — Rehabilitation — Unlikely to re-offend SENTENCING — Subjective considerations on sentence — Special circumstances — Age of offender — Drug addiction
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Lopatinsky v The Queen [2017] NSWCCA 227 R v Achurch (2011) 216 A Crim R 152 R v Qi [2019] NSWCCA 73 R v Qutami (2001) 127 A Crim R 369 R v Taouk (1992) 65 A Crim R 387 R v Thompson [2000] NSWCCA 294 R v Thompson [2000] NSWCCA 294 Refaieh v R [2018] NSWCCA 27
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Mouhamad Khaddam (Offender)
Representation:	Mr M Reville (Crown) Mr A Djemal (Counsel for Offender)
File Number(s):	2018/204984