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R v Nakash

R v Nakash

Case [2017] NSWCCA 196 18 August 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Nakash [2017] NSWCCA 196
Hearing dates: 10 March 2017
Decision date: 18 August 2017
Before: Simpson JA at [1]
Button J at [26]
N Adams J at [117]
Decision:
Crown appeal dismissed.

Catchwords: CRIMINAL – appeal – sentence – trafficking a commercial quantity of cocaine – whether sentence manifestly inadequate – whether sentence imposed failed to reflect objective seriousness of offending despite compelling subjective features – difficulty in establishing manifest inadequacy in absence of comparative sentences – Crown appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth), s 16BA
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Criminal Code Act 1995 (Cth), Sch, ss 302.2(1), 400.3(1), 400.9(1A)
Criminal Code Regulations 2002 (Cth), Sch 4
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Halac v R [2015] NSWCCA 121
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15
Le v R (Cth) [2010] NSWCCA 285
Lieu v The Queen [2016] VSCA 277
Ljuboja v The Queen (2011) 210 A Crim R 274; [2011] WASCA 143
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Medan v The Queen [2011] WASCA 142
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Olivares v R [2016] NSWCCA 270
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
Sergi v Director of Public Prosecutions (Cth) [2005] VSCA 181
Shen v R [2009] NSWCCA 251
The Queen v Kilic (2016) 339 ALR 229; [2016] HCA 48
R v Ng; R v Siu [2009] VSCA 218
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Regina (Applicant)
David Nakash (Respondent)
Representation:
Counsel:
L Crowley (Applicant)
GD Wendler (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Applicant)
John D Weller & Associates (Respondent)

File Number(s): 2010/389509
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

29 July 2016

Before:

Whitford DCJ

File Number(s):

2010/389509

Judgment

SIMPSON JA: I have read in draft the judgment of Button J. The relevant facts and circumstances are comprehensively set out, and need not be repeated, except so far as is necessary to explain the concurring view to which I have come.
The sole ground of appeal upon which the Crown relied was that the sentence imposed on the respondent was manifestly inadequate.
Sentencing is quintessentially an exercise of discretion: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014]…

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 Nakash

Details

AGLC: R v Nakash [2017] NSWCCA 196
Case: [2017] NSWCCA 196
Decision Date: 18 August 2017

CaseChat Overview and Summary

The appellant, Nakash, was convicted and sentenced to imprisonment for trafficking a commercial quantity of cocaine. The Crown appealed against the sentence, contending that it was manifestly inadequate. The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate, considering the objective seriousness of the offence, despite the presence of compelling subjective factors that might warrant a reduced sentence. The court was also required to determine whether the sentence failed to reflect the objective seriousness of the offending despite the compelling subjective features.

The court examined the principles guiding sentencing in relation to drug trafficking offences and the need to balance objective and subjective considerations. It noted the difficulty in establishing manifest inadequacy without comparative sentences but focused on the gravity of the offence and the need for deterrence. The court found that while the sentence was influenced by compelling subjective features, it sufficiently reflected the objective seriousness of the offence. The court concluded that the sentence was not manifestly inadequate and dismissed the Crown’s appeal.

No further orders were made by the court as the appeal was dismissed. The original sentence imposed by the trial judge was upheld as appropriate given the circumstances of the case.

Orders