R v Malas; R v Chaouk

Case [2020] NSWDC 893

District Court


New South Wales

Medium Neutral Citation: R v Malas; R v Chaouk [2020] NSWDC 893
Hearing dates: 17 December 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Jurisdiction:Criminal
Before: M L Williams SC DCJ
Decision:

Malas: An aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 3 months: at [52]

Chaouk: A term of imprisonment of 6 years with a non-parole period of 4 years: at [52].

Catchwords:

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Planned or organised criminal activity

SENTENCING — Mitigating factors — Plea of guilty— Rehabilitation — Remorse

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Form 1 offences — General principles — Maximum penalty — Objective seriousness — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Age of offender — Hardship — Health issues — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentence Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Poisons and Therapeutic Goods Act 1966

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Assam v R [2019] NSWCCA 12

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Ebrahami v R [2019] NSWCCA 27

Matthews v R; New v R [2018] NSWCCA 186

Matu v R [2019] NSWCCA 23

R v Achmar [2018] NSWDC 461

R v Khalil; R v Bilson [2019] NSWDC 271

R v Rustom; R v Vernon [2017] NSWDC 245

Texts Cited:

Nil

Category:Sentence
Parties:

Regina (Crown)

Mustapha Malas (Offender)
Tamir Chaouk (Offender)
Representation:

Mr E Freelander, solicitor for the Office of the Director of Public Prosecutions

Mr P Boulten SC, counsel for Chaouk

Mr E Ozen, counsel for Malas
File Number(s): 2018/335887; 2019/17453; 2019/14504

Judgment

  1. Two young men appear for sentence in relation to their involvement in what has been accurately described as a small, on demand business supplying relatively small quantities of methylamphetamine to a small number of customers in the Sydney metropolitan area. Customers would place their orders by phone and it would be delivered to them by Mr Malas, usually at the request of Mr Chaouk, in return for payment.

  2. Typically the deliveries involve quantities between 1.75 and 14 grams of methylamphetamine. The largest amount supplied was 28 grams. The purity of the drugs was never ascertained, but it is likely that it was consistent with typical street supplies and not particularly high quality.

  3. While the operation was organised it was not terribly sophisticated. Of course the participants did not refer to methylamphetamine in their telephone communications with each other, but it was one carrying the features that one frequently sees in this type of distribution business.

  4. There is no evidence of the source of the drugs. It follows that Chaouk had to pay for the drugs and…

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Details
AGLC
R v Malas; R v Chaouk [2020] NSWDC 893
Case
[2020] NSWDC 893
Decision Date

CaseChat Overview and Summary

The appellants, Malas and Chaouk, faced the Court of Appeal in relation to their respective sentences following convictions for various criminal offences. The primary appeal concerned the adequacy of the sentencing decisions made by the primary judge, specifically the length of the sentences and the non-parole periods imposed. The legal issues before the court involved the application of both aggravating and mitigating factors, the appropriate weight to be given to these factors, and the overall fairness and proportionality of the sentences.

The court considered whether the primary judge correctly identified and applied the relevant aggravating and mitigating factors. Aggravating factors included the appellants' breach of conditional liberty and their extensive criminal records, as well as the planned and organised nature of their criminal activities. Mitigating factors considered were the appellants' early guilty pleas, their expressions of remorse, and their prospects for rehabilitation. The court needed to determine whether the primary judge had erred in the balance struck between these factors, and whether the sentences imposed were appropriate in all the circumstances. The court also examined whether the sentences complied with the general principles of sentencing, including the purposes of deterrence, retribution, and rehabilitation.

After reviewing the evidence and arguments, the court concluded that the primary judge had not erred in the overall balance struck between the aggravating and mitigating factors. The court found that the sentences, while severe, were necessary to achieve the purposes of sentencing, particularly given the appellants' criminal histories and the seriousness of their offences. The court determined that the sentences were proportionate and fair, taking into account all relevant factors. Consequently, the appeal was dismissed, and the original sentences were affirmed. Malas was to serve an aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 3 months, while Chaouk was to serve a term of imprisonment of 6 years with a non-parole period of 4 years.

Orders

Orders of the court

Malas: An aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 3 months: at [52]

Chaouk: A term of imprisonment of 6 years with a non-parole period of 4 years: at [52].

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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