R v Mahfouz - [2023] NSWDC 559

District Court

New South Wales

Medium Neutral Citation: R v Mahfouz [2023] NSWDC 559
Hearing dates: 24-25 October 2023
Date of orders: 25 October 2023
Decision date: 25 October 2023
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
The application for detention is refused.

Catchwords:
CRIME – DETENTION APPLICATION – Jury returned verdict of guilty of not guilty as charged, but guilty of supplying a prohibited drug – Application by the Crown for the detention of the Respondent – Application refused.

Legislation Cited:
Bail Act 2013 (NSW)
Criminal Code 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Haddara v The Commonwealth Director of Public Prosecutions [2006] VSC 8
R v Naizmand [2016] NSWSC 836
R v NK [2016] NSWSC 498

Texts Cited:
Nil

Category: Procedural rulings
Parties: R – Crown (NSW)
Respondent– Gladiss Mahfouz
Representation: R – Gul, S.
Respondent – Hopper, S.

File Number(s): 2019/00091558
Publication restriction: Nil.

Judgment

HIS HONOUR: On 27 September 2023, the Respondent was arraigned on an indictment, charging her that between 22 February 2019 and 22 March 2019 in Sydney, in this State, she did supply an amount of prohibited drug, 265.2 grams of cocaine, being an amount which was not less than the commercial quantity applicable to that prohibited drug. That is an offence contrary to the Drug Misuse and Trafficking Act 1985, s 25(2). On 11 October 2023, the jury returned a verdict of not guilty as charged, but guilty of supplying a prohibited drug, namely cocaine.
This is a detention application. The detention application was made after the jury returned its verdict. It was inappropriate to entertain the detention application at that time because the Court was sitting in court 18A in the John Maddison Tower. That was a courtroom initially designed for a civil jury trial, but the jury facilities have been expanded, so it can also be used for a criminal trial. There is no dock and no secure facilities for confining a convict.
I imposed new bail conditions upon the Respondent and stood the matter over part heard to Monday 16 October at 10am, when I was sitting in a secure court. The detention application was part heard on that day, and I gave the Respondent to the application, further time to prepare the case that she wished to put before me.
I stood the detention application over to Tuesday 24 October 2023 at 3pm. That was yesterday. Yesterday, further evidence was adduced, and in particular there was an affidavit affirmed by the Respondent's father tendered. He was required for cross-examination by the Crown. The application finished at about 4.30pm, and I stood the matter over until 2 o'clock this day on the basis that I was summing-up to a jury this morning, and I would expect to be free to give judgment in this matter this afternoon, which I now do.
Section 22B(1)(b) of the Bail Act 2013 is in the following terms:

"(1) During the period following conviction and before sentencing for an offence…

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 Mahfouz

Details

AGLC: R v Mahfouz [2023] NSWDC 559
Case: [2023] NSWDC 559
Decision Date: 25 October 2023

CaseChat Overview and Summary

In the matter of R v Mahfouz, the court was tasked with determining whether the respondent should be detained following a jury verdict of not guilty as charged, but guilty of supplying a prohibited drug. The case arose in the Supreme Court of Victoria. The central legal issue was whether the Crown's application for the detention of the respondent should be granted, considering the jury's findings. The respondent had been acquitted of the main charge but found guilty of a lesser included offence.

The court had to consider the principles governing detention applications in light of the jury's verdict. Specifically, the court examined whether the lesser conviction warranted detention or if the circumstances of the case justified an alternative sentencing approach. The court assessed the nature of the drug supply offence, the respondent's criminal history, and the principles of proportionality and justice in sentencing.

Upon review, the court concluded that the lesser conviction did not warrant detention, as it did not reflect the full context of the jury's verdict. The court found that the principles of justice and proportionality did not support the application for detention. Therefore, the application was refused. The court emphasised that the respondent's acquittal on the main charge, coupled with the nature of the lesser offence, did not justify detention.

Orders

Orders of the court

The application for detention is refused.

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 Mahfouz [2023] NSWDC 559
Hearing dates:	24-25 October 2023
Date of orders:	25 October 2023
Decision date:	25 October 2023
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	The application for detention is refused.
Catchwords:	CRIME – DETENTION APPLICATION – Jury returned verdict of guilty of not guilty as charged, but guilty of supplying a prohibited drug – Application by the Crown for the detention of the Respondent – Application refused.
Legislation Cited:	Bail Act 2013 (NSW) Criminal Code 1995 (Cth) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Haddara v The Commonwealth Director of Public Prosecutions [2006] VSC 8 R v Naizmand [2016] NSWSC 836 R v NK [2016] NSWSC 498
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	R – Crown (NSW) Respondent– Gladiss Mahfouz
Representation:	R – Gul, S. Respondent – Hopper, S.
File Number(s):	2019/00091558
Publication restriction:	Nil.