R v Nasr - [2004] NSWCCA 441

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Nasr [2004] NSWCCA 441

FILE NUMBER(S):
2004/2395

HEARING DATE(S): 01/12/04

JUDGMENT DATE: 08/12/2004

PARTIES:
Crown - Appellant
David Nasr - Respondent

JUDGMENT OF: Tobias JA Sully J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1135

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
Ms J Girdham - Applicant Crown
Mr R Hulme SC - Respondent

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Crown
S O'Connor, Legal Aid Commission - Applicant

CATCHWORDS:
CRIMINAL LAW: Sentencing - Crown appeal against leniency of sentence - whether sentence manifestly inadequate - objective gravity of offences - member of drug supplying syndicate - whether prospects of successful rehabilitation given too much weight.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

DECISION:
Crown appeal allowed. Sentences imposed in relation to counts 1,2 and 3 quashed. Respondent re-sentenced.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2395
TOBIAS JA
SULLY J
HOEBEN J
Wednesday, 8 December, 2004

REGINA v David NASR

Judgment

TOBIAS JA: I agree with Hoeben J.
SULLY J: I agree with Hoeben J.
HOEBEN J:
Offences and sentences
On 2 June 2004 the respondent entered a plea of guilty to the following offences:
Count 1: Ongoing supply of a prohibited drug methylamphetamine (d.o.o. between 24 March 2002 – 25 April 2002) contrary to subs 25A(1) of the Drug Misuse and Trafficking Act 1985.
The maximum penalty is $385,000 fine or imprisonment for 20 years or both.
Count 2: Supply a prohibited drug, methylamphetamine (d.o.o. between 25 April 2002 and 20 August 2002) contrary to ss 25(1), 32(1)(g) of the Drug Misuse and Trafficking Act 1985.
The maximum penalty is $220,000 fine or imprisonment for 15 years or both.
Count 3: Supply a prohibited drug, cannabis (d.o.o. between 14 February 2002 and 20 August 2002) contrary to ss 25(1), 32(1)(h) of the Drug Misuse and Trafficking Act 1985.
The maximum penalty is $220,000 fine or imprisonment for 10 years or both.
The respondent came before Phegan DCJ on 27 August 2004 to be sentenced for those offences. In respect of Counts 1 and 2 his Honour imposed concurrent terms of 3 years with a 1 year 8 month non-parole period to be served by way of periodic detention. In relation to Count 3 his Honour imposed an 18 month sentence to be served by way of periodic detention. The commencement date for each sentence was 3 September 2004.
The Director of Public Prosecutions has appealed against those sentences. The Director signed the Notice of Appeal on 17 September 2004. Notice was served on the respondent at his home address on 23 September 2004, within four weeks of sentencing.
Factual background
Strike force “Tolve” was established to target the supply of prohibited drugs in the Ashfield and Campsie local area commands. A well-organised drug dealing business was operated out of premises in Arthur Street, Ashfield. Customers telephoned mobile telephone numbers to place their orders for prohibited drugs, usually using code words and…

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 Nasr

Details

AGLC: R v Nasr [2004] NSWCCA 441
Case: [2004] NSWCCA 441
Decision Date: 8 December 2004

CaseChat Overview and Summary

The Director of Public Prosecutions has appealed against the sentence imposed on the respondent, Nasr, following his conviction for drug-related offences. Nasr was found to be a member of a syndicate involved in the supply of methylamphetamine and cannabis in the Ashfield and Campsie area. The syndicate used a well-organised business model involving the use of mobile phones and code words to facilitate drug transactions. Nasr was involved in the supply of drugs on multiple occasions and was sentenced alongside other syndicate members. The Director of Public Prosecutions argued that the sentence imposed on Nasr was manifestly inadequate given the seriousness of the offence and the need for clear denunciation.

The legal issue before the court was whether the sentence imposed on Nasr was manifestly inadequate, and if so, whether the prospects of successful rehabilitation should be considered in light of the objective gravity of the offences committed. The court considered the nature of the offence, the role of Nasr in the syndicate, and the need for deterrence and denunciation. The court also took into account the subjective factors, such as Nasr's progress in rehabilitation, and the time he had already spent in custody.

The court found that the sentence imposed on Nasr was manifestly inadequate and did not adequately reflect the seriousness of the offence. The court noted that the syndicate's drug supply operation was systematic and extensive, with high volumes of drugs being sold on a daily basis. The court also considered the need for clear denunciation and the impact of the offence on the community. The court found that the prospects of successful rehabilitation should not be given undue weight in light of the objective gravity of the offences. The court re-sentenced Nasr to a period of full-time imprisonment, taking into account the discount for his early guilty plea and the time already served. The court imposed a non-parole period of one year, backdated to the date of the original sentence.

The court allowed the appeal and quashed the sentences imposed on Nasr. In lieu thereof, the court sentenced Nasr to concurrent periods of imprisonment of two years and three months with a non-parole period of one year for Counts 1 and 2, and a fixed term of imprisonment of one year for Count 3. The court directed that Nasr be released to parole on the expiry of the non-parole period.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Director of Public Prosecutions has appealed against those sentences. The Director signed the Notice of Appeal on 17 September 2004. Notice was served on the respondent at his home address on 23 September 2004, within four weeks of sentencing.Factual background Strike force “Tolve” was established to target the supply of prohibited drugs in the Ashfield and Campsie local area commands. A well-organised drug dealing business was operated out of premises in Arthur Street, Ashfield. Customers telephoned mobile telephone numbers to place their orders for prohibited drugs, usually using code words and small quantities of prohibited drugs at a time were dispatched by “runners” in vehicles, often meeting the customers in public places such as car-parks. The offenders were criminally liable, both for individual transactions and because they took part in a joint criminal enterprise. Police obtained telephone intercept warrants and monitored the telephone numbers associated with the persons at the premises. On average there were 75-200 calls per day. The respondent was a member of the syndicate running the business, albeit not a leading member. He was sentenced with other members of the syndicate – John Kairouz, Anthony Kairouz, Charbel Kairouz and Saad Nasr, all of whom played a more prominent part in the syndicate. His Honour made the following findings of facts based on the agreed facts relevant to the respondent and the co-offenders with whom he was sentenced.(a) There was a syndicate involved in the supply of drugs (methylamphetamine and cannabis) in the Ashfield and Campsie area from at least February 2002.(b) Each offender was a member of that syndicate and was to that extent involved in a joint criminal enterprise to supply such drugs.(c) Three mobile telephones were used by the syndicate for the purposes of supplying the drugs, false names and addresses having been recorded in respect of those telephones.(d) Each telephone received a substantial number of calls almost on a daily basis.(e) Based on thirty three controlled purchases by undercover police and intercepted telephone calls:(i)Methylamphetamine tablets with an average weight of about .3 grams were sold for between $30-$50 per tablet;(ii)Methylamphetamine powder was sold in small bags weighing approximately .51 grams each;(iii)Cannabis was supplied in bags which would either be $20 or $50 deals;(iv)Generally a code was used when discussing drugs, although at times there were slips and common names were used.(f) This was a case of a systematic enterprise for the purpose of profit;(g) The scale of the operation and the nature of the means used were sufficient to put it on a level of serious and systematic sale of the drugs concerned. Insofar as the respondent was concerned, the agreed fact showed:(a) He at times participated in the actual supply to undercover police officers.(b) He supplied methylamphetamine on four occasions to undercover officers between 28 April 2002 and 3 May 2002 (ie during the period referred to in Count 2) and(c) He was involved on “almost a daily basis” in the supply of methylamphetamine and cannabis from 15 April 2002 to 25 April 2002.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am also mindful that the respondent was sentenced on 27 August 2004 and that the uncertainty surrounding the appeal and the fact of being re-sentenced to a period of fulltime imprisonment can be cruel in its effect (R v Hernando (2002) 136 A Crim R 451). Nevertheless, the seriousness of this offence balanced against the manifest inadequacy of the sentence and the need for clear denunciation requires that the respondent be re-sentenced so that he undergoes a period of fulltime imprisonment.Decision The sentence which I propose is 3 years fulltime imprisonment. Applying the twenty five percent discount for the early plea of guilty made by his Honour the sentence is reduced to 2 years and 3 months. T`he subjective factors in this matter, particularly the progress in rehabilitation are compelling. Accordingly, I fix a non-parole period of 1 year. I am also mindful that the respondent spent 130 days in custody between August and December 2002 and that he has completed 12 weeks of his periodic detention. For that reason I propose to backdate the sentence to commence on 1 July 2004. I propose the following orders:(1) Appeal allowed.(2) The sentences imposed in relation to Counts 1-2 are quashed. In lieu thereof the respondent is sentenced to concurrent periods of imprisonment of 2 years and 3 months with a non-parole period of 1 year. The non-parole period is taken to have commenced on 1 July 2004 and will expire on 30 June 2005. The parole period will commence on 1 July 2005 and will expire on 30 September 2006.(3) The sentence imposed in relation to Count 3 is quashed. In lieu thereof the respondent is sentenced to a fixed term of imprisonment of 1 year. That sentence is taken to have commenced on 1 July 2004 and will expire on 30 June 2005.(4) I direct that the respondent be released to parole on the expiry of the non-parole period on 30 June 2005.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.