R v Nassif - [2019] NSWDC 418

District Court

New South Wales

Medium Neutral Citation: R v Nassif [2019] NSWDC 418
Hearing dates: 31 May 2019
Date of orders: 25 June 2019
Decision date: 25 June 2019
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
(1)   Elias Nassif is convicted of the offences of:
(a)   supply of a prohibited drug, namely 478.8g of Gamma Butyrolactone (Count 1); and
(b)   possession without a permit of a prohibited weapon, namely an extendable baton (Count 2).
(2)   Note that there being no other appropriate sentence, I would have imposed an aggregate sentence of a term of imprisonment for a period of two years dating from 22 January 2019 and ending on 21 January 2021.
(3)   Taking into account that Mr Nassif has served a period in custody from 22 January 2019 until today, I impose an aggregate sentence of imprisonment for a term of 18 months and 28 days starting today and ending on 21 January 2021.
(4) Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, order that the sentence of imprisonment is to be served by way of intensive correction in the community.
(5)   Mr Nassif must report to the Community Corrections Office as soon as practicable but no later than 7 days from today.
(6)   The standard conditions apply to the Intensive Correction Order, namely:
(a)   Mr Nassif must not commit any offence; and
(b)   Mr Nassif must submit to supervision by a Community Corrections Officer.
(7)   The following additional conditions apply to the Intensive Correction Order, namely:
(a)   Mr Nassif must abstain from all illicit substances for the period of the Intensive Correction Order, namely until 21 January 2021.
(b)   Mr Nassif must attend at a drug and alcohol program during the period of the Intensive Correction Order.
(8)   Note that the two offences of supply prohibited drug on the Form 1 were taken into account.
(9)   In respect of Count 1, supply prohibited drug, namely, Gamma Butyrolactone, the indicative sentence is 21 months of imprisonment.
(10)   In respect of Count 2, possess or use a prohibited weapon, the indicative sentence is four months of imprisonment.

Catchwords: CRIME – sentence - drug offences - supply prohibited drug - indictable quantity – Gamma Butyrolactone – GBL - possession of a prohibited weapon – extendable baton – guilty plea
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 32, s 55A, s 54B, s 73A
Drug Misuse and Trafficking Act 1985, s 25, s 32, sch 1
Weapons Prohibition Act 1998, s 7
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
Mooney v R [2016] NSWCCA 231
R v Robert Borkowski [2009] NSWCCA 102
Regina v Dibb [2003] NSWCCA 117
Category: Sentence
Parties: Regina
Elias Nassif (Offender)
Representation: Solicitors:
Office of the Director of Public Prosecutions (Crown)
Voros Lawyers (Offender)

File Number(s): 2017/134746
Publication restriction: None

Judgment on sentence

Elias Nassif pleaded guilty to supply of a…

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 Nassif

Details

AGLC: R v Nassif [2019] NSWDC 418
Case: [2019] NSWDC 418
Decision Date: 25 June 2019

CaseChat Overview and Summary

In the case of R v Nassif, the defendant, Elias Nassif, was convicted on two counts: the supply of a prohibited drug, specifically 478.8 grams of Gamma Butyrolactone (GBL), and the possession without a permit of an extendable baton, which is classified as a prohibited weapon. The case was heard and decided by a court, whose specific identity is not detailed in the text.

The primary legal issues the court had to address involved the appropriate sentence for Mr. Nassif's convictions, taking into account the nature and circumstances of the offences, as well as any mitigating factors. Given Mr. Nassif's guilty plea, the court was also required to determine the sentencing framework, including whether the offences warranted concurrent or consecutive sentencing, and whether the sentences should be served in custody or through community-based penalties.

The court found that due to Mr. Nassif's guilty plea and the circumstances of the offences, the appropriate punishment was a combination of imprisonment and community-based penalties. After considering the indicative sentences for each offence, the court decided on an aggregate sentence of imprisonment for two years, starting from the date of arrest and ending on a specified future date. However, considering that Mr. Nassif had already served some time in custody, the court adjusted the sentence to 18 months and 28 days, to be served through an intensive correction order in the community. This decision was made pursuant to the relevant sentencing act, and additional conditions were imposed, including abstaining from illicit substances and attending a drug and alcohol program.

Orders

Orders of the court

(1) Elias Nassif is convicted of the offences of:

(a) supply of a prohibited drug, namely 478.8g of Gamma Butyrolactone (Count 1); and

(b) possession without a permit of a prohibited weapon, namely an extendable baton (Count 2).

(2) Note that there being no other appropriate sentence, I would have imposed an aggregate sentence of a term of imprisonment for a period of two years dating from 22 January 2019 and ending on 21 January 2021.

(3) Taking into account that Mr Nassif has served a period in custody from 22 January 2019 until today, I impose an aggregate sentence of imprisonment for a term of 18 months and 28 days starting today and ending on 21 January 2021.

(4) Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, order that the sentence of imprisonment is to be served by way of intensive correction in the community.

(5) Mr Nassif must report to the Community Corrections Office as soon as practicable but no later than 7 days from today.

(6) The standard conditions apply to the Intensive Correction Order, namely:

(a) Mr Nassif must not commit any offence; and

(b) Mr Nassif must submit to supervision by a Community Corrections Officer.

(7) The following additional conditions apply to the Intensive Correction Order, namely:

(a) Mr Nassif must abstain from all illicit substances for the period of the Intensive Correction Order, namely until 21 January 2021.

(b) Mr Nassif must attend at a drug and alcohol program during the period of the Intensive Correction Order.

(8) Note that the two offences of supply prohibited drug on the Form 1 were taken into account.

(9) In respect of Count 1, supply prohibited drug, namely, Gamma Butyrolactone, the indicative sentence is 21 months of imprisonment.

(10) In respect of Count 2, possess or use a prohibited weapon, the indicative sentence is four months of imprisonment.

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 Nassif [2019] NSWDC 418
Hearing dates:	31 May 2019
Date of orders:	25 June 2019
Decision date:	25 June 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	(1) Elias Nassif is convicted of the offences of: (a) supply of a prohibited drug, namely 478.8g of Gamma Butyrolactone (Count 1); and (b) possession without a permit of a prohibited weapon, namely an extendable baton (Count 2). (2) Note that there being no other appropriate sentence, I would have imposed an aggregate sentence of a term of imprisonment for a period of two years dating from 22 January 2019 and ending on 21 January 2021. (3) Taking into account that Mr Nassif has served a period in custody from 22 January 2019 until today, I impose an aggregate sentence of imprisonment for a term of 18 months and 28 days starting today and ending on 21 January 2021. (4) Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, order that the sentence of imprisonment is to be served by way of intensive correction in the community. (5) Mr Nassif must report to the Community Corrections Office as soon as practicable but no later than 7 days from today. (6) The standard conditions apply to the Intensive Correction Order, namely: (a) Mr Nassif must not commit any offence; and (b) Mr Nassif must submit to supervision by a Community Corrections Officer. (7) The following additional conditions apply to the Intensive Correction Order, namely: (a) Mr Nassif must abstain from all illicit substances for the period of the Intensive Correction Order, namely until 21 January 2021. (b) Mr Nassif must attend at a drug and alcohol program during the period of the Intensive Correction Order. (8) Note that the two offences of supply prohibited drug on the Form 1 were taken into account. (9) In respect of Count 1, supply prohibited drug, namely, Gamma Butyrolactone, the indicative sentence is 21 months of imprisonment. (10) In respect of Count 2, possess or use a prohibited weapon, the indicative sentence is four months of imprisonment.
Catchwords:	CRIME – sentence - drug offences - supply prohibited drug - indictable quantity – Gamma Butyrolactone – GBL - possession of a prohibited weapon – extendable baton – guilty plea
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 32, s 55A, s 54B, s 73A Drug Misuse and Trafficking Act 1985, s 25, s 32, sch 1 Weapons Prohibition Act 1998, s 7
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Mooney v R [2016] NSWCCA 231 R v Robert Borkowski [2009] NSWCCA 102 Regina v Dibb [2003] NSWCCA 117
Category:	Sentence
Parties:	Regina Elias Nassif (Offender)
Representation:	Solicitors: Office of the Director of Public Prosecutions (Crown) Voros Lawyers (Offender)
File Number(s):	2017/134746
Publication restriction:	None