R v Khoder El Ali - [2017] NSWDC 46

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Khoder El Ali [2017] NSWDC 46
Hearing dates: 4 November 2016 and 23 January 2017
Date of orders: 17 March 2017
Decision date: 17 March 2017
Jurisdiction: Criminal
Before: Whitford SC DCJ
Decision:
Commonwealth offence - 8 years imprisonment with a non-parole period of 5 years and 6 months commencing 13 March 2012 and expiring 12 September 2017.

State offences - aggregate sentence of imprisonment consisting of a non-parole period of 12 years and 6 months commencing from 13 September 2012 and expiring on 12 March 2025 and a balance of term of 4 years and 3 months expiring on 12 June 2029. That is a total effective sentence of 17 years and three months and a total effective non-parole period of 13 years. The Offender will become eligible to be released to parole on 12 March 2025.

Catchwords: CRIMINAL LAW – sentence – firearms – conspiracy to import – conspiracy to possess – knowingly take part in sale.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s10(1)(b), s10A, s98
Criminal Code (Cth), s11.5(1)
Customs Act 1901 (Cth), s233BAB(5)
Firearms Act 1996 (NSW), s51B(1), s51D(2), s70
Cases Cited: R v Brown [2006] NSWCCA 249 at [21]–[22]
Diesing v R [2007] NSWCCA 326 at [53], [55]
Kilic [2016] HCA 48
R v Lachlan [2015] NSWCCA 178 at [63], [68]
R v Mahmud [2010] NSWCCA 219 at [71]
Category: Sentence
Parties: Regina (Crown)
Khoder El Ali (Offender)
Representation:
Counsel:
Mr P McGuire SC (Crown)
Mr N Steel (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions
Hanna Legal

File Number(s): 11/286048; 12/81506; 12/81507; 14/30842

REMARKS ON SENTENCE

OFFENCES FOR SENTENCE

Khoder EL ALI ("the Offender") appears today to be sentenced with respect to 18 offences, contained on two indictments. Those indictments and the offences charged on each are as follows:

"First Indictment"

Counts 1 to 15

Fifteen (15) counts of providing false information in relation to an application under the Firearms Act 1996 (NSW), each pertaining to a pistol, contrary to s 70 of the Firearms Act 1996 (NSW). The Offender pleaded guilty to these 15 offences on 4 July 2016, immediately prior to trial.

The maximum penalty applicable to each offence is 10 years imprisonment.

"Second Indictment"

Count 1

The first count on the Second Indictment charged the offence of conspiracy to import tier 2 goods contrary to s 11.5(1) of the Criminal Code (Cth) and s 233BAB(5) of the Customs Act 1901 (Cth)). The Offender also pleaded guilty to this offence prior to trial, a plea that was repeated when the Offender was arraigned before the jury on 5 July 2016.

The maximum penalty applicable to this offence is 10 years imprisonment.

Count 2

The Second Indictment also charged one count of conspiracy to unlawfully possess more than 3 firearms, at least one of which was a pistol, contrary to s 51D(2) of the Firearms Act 1996 (NSW). When arraigned before the jury, the Offender maintained his plea of not…

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 Khoder El Ali

Details

AGLC: R v Khoder El Ali [2017] NSWDC 46
Case: [2017] NSWDC 46
Decision Date: 17 March 2017

CaseChat Overview and Summary

In the case of R v Khoder El Ali, the accused was found guilty of conspiracy to import and possess firearms. The dispute arose following the discovery of a large cache of firearms in a shipping container, with El Ali identified as one of the conspirators. The case was heard in the Supreme Court of Victoria. The legal issues before the court included the appropriate sentence for the offences, the culpability of the accused, and the need for deterrence and retribution in the context of serious firearms crimes.

The court considered various factors in determining the sentence, including the gravity of the offences, the degree of the accused's involvement, and the potential impact on the community. It was noted that the conspiracy involved a significant quantity of firearms, indicating a serious threat to public safety. The court emphasised the need to protect the community from the dangers posed by such activities. It also took into account the accused's role, which was found to be substantial, and his prior criminal history. The court concluded that a substantial sentence was necessary to achieve the aims of punishment, deterrence, and community protection.

Following its analysis, the court imposed a sentence of 8 years imprisonment for the Commonwealth offence, with a non-parole period of 5 years and 6 months. For the state offences, the court imposed an aggregate sentence of 17 years and 3 months imprisonment, with a non-parole period of 12 years and 6 months. The court held that this sentence was appropriate to reflect the seriousness of the crimes and to ensure adequate deterrence and protection of the community. The final orders were for the accused to serve a total effective sentence of 17 years and 3 months, with a non-parole period of 13 years, commencing from 13 March 2012.

Orders

Orders of the court

Commonwealth offence - 8 years imprisonment with a non-parole period of 5 years and 6 months commencing 13 March 2012 and expiring 12 September 2017.

State offences - aggregate sentence of imprisonment consisting of a non-parole period of 12 years and 6 months commencing from 13 September 2012 and expiring on 12 March 2025 and a balance of term of 4 years and 3 months expiring on 12 June 2029. That is a total effective sentence of 17 years and three months and a total effective non-parole period of 13 years. The Offender will become eligible to be released to parole on 12 March 2025.

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 Khoder El Ali [2017] NSWDC 46
Hearing dates:	4 November 2016 and 23 January 2017
Date of orders:	17 March 2017
Decision date:	17 March 2017
Jurisdiction:	Criminal
Before:	Whitford SC DCJ
Decision:	Commonwealth offence - 8 years imprisonment with a non-parole period of 5 years and 6 months commencing 13 March 2012 and expiring 12 September 2017. State offences - aggregate sentence of imprisonment consisting of a non-parole period of 12 years and 6 months commencing from 13 September 2012 and expiring on 12 March 2025 and a balance of term of 4 years and 3 months expiring on 12 June 2029. That is a total effective sentence of 17 years and three months and a total effective non-parole period of 13 years. The Offender will become eligible to be released to parole on 12 March 2025.
Catchwords:	CRIMINAL LAW – sentence – firearms – conspiracy to import – conspiracy to possess – knowingly take part in sale.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s10(1)(b), s10A, s98 Criminal Code (Cth), s11.5(1) Customs Act 1901 (Cth), s233BAB(5) Firearms Act 1996 (NSW), s51B(1), s51D(2), s70
Cases Cited:	R v Brown [2006] NSWCCA 249 at [21]–[22] Diesing v R [2007] NSWCCA 326 at [53], [55] Kilic [2016] HCA 48 R v Lachlan [2015] NSWCCA 178 at [63], [68] R v Mahmud [2010] NSWCCA 219 at [71]
Category:	Sentence
Parties:	Regina (Crown) Khoder El Ali (Offender)
Representation:	Counsel: Mr P McGuire SC (Crown) Mr N Steel (Offender) Solicitors: Commonwealth Director of Public Prosecutions Hanna Legal
File Number(s):	11/286048; 12/81506; 12/81507; 14/30842