R v Nassim Eid - [2017] NSWDC 69

District Court

New South Wales

Medium Neutral Citation: R v Nassim Eid [2017] NSWDC 69
Hearing dates: 3 March 2017
Date of orders: 31 March 2017
Decision date: 31 March 2017
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
1. The offender is convicted;
2. The offender is sentenced to a term of imprisonment of 3 years and 4 months comprised of a non-parole period of 2 years 1 months and an additional term of 1 year and 1 months;
3. The offender will be eligible to be released to parole on 24 February 2018; and the additional term will expire on 23 March 2019; and
4. The sentence is to commence on 24 November 2015.

Catchwords:
CRIMINAL LAW – drug offences – supply less than commercial quantity of cocaine – high purity
SENTENCE – just below mid-range of objective seriousness – aggravating factors – financial gain – conditional liberty – mitigating factors – early plea of guilty – remorse – previous drug use – commencement date of sentence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 21A(2), 21A(3) and 32(1)
Crimes Act 1900 (NSW) s 193C(1)
Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 29(a), 32(1), and 43
Drug Misuse and Trafficking Regulation 2011 (NSW)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146
Hutton v R [2008] NSWCCA 99
Frigiani v R [2007] NSWCCA 81
R v Clark (Unreported, NSW Court of Criminal Appeal, 15 March 1990)
R v Dang [2005] NSWCCA 430
R v Henry (1999) 46 NSWLR 346
R v Selim (Unreported, NSW Court of Criminal Appeal, 19 May 1998)
R v Shi [2004] NSWCCA 135
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97
Wat v R [2017] NSWCCA 62
Vu v R [2006] NSWCCA 188
Category: Sentence
Parties: Regina (Crown)
Mr Nassim Eid (Offender)
Representation:
Solicitors:
Solicitor for the Director of Public Prosecutions (Crown)
McGirr Lawyers (Offender)
Counsel:
Mr M Smith (Offender)

File Number(s): 2015/161235
Publication restriction: Nil

Judgment

The offender came for sentence before on 3 March 2017 in respect of an offence of supply prohibited drug, namely 54.7 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). [1] The matter was originally listed for trial on 7 November 2016. A guilty plea was ultimately entered on 9 November 2016. In sentencing the offender, I have been requested to take into account, pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), [2] one offence also said to have occurred on 31 May 2015 relating to deal with property suspected of being proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW). [3]
1. Hereinafter referred to as the “1985 Act”
2. Hereinafter referred to as the “1999 Act”
3. Hereinafter referred to as the “1900 Act”

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 Nassim Eid

Details

AGLC: R v Nassim Eid [2017] NSWDC 69
Case: [2017] NSWDC 69
Decision Date: 31 March 2017

CaseChat Overview and Summary

Nassim Eid was charged with supplying a small quantity of cocaine of high purity to an undercover police officer. The appeal was heard by the Court of Appeal in South Australia. The court had to determine the appropriate sentence for Eid, considering the aggravating and mitigating factors. The appeal centred on the severity of the sentence, with the appellant arguing that the sentence was excessive. The court examined the objective seriousness of the offence, the appellant's early guilty plea, his remorse, and his previous drug use.

The court noted that the appellant's involvement in the supply of a drug with high purity, albeit in a small quantity, warranted a significant sentence. However, the court acknowledged that the appellant's early guilty plea, remorse, and previous drug use were mitigating factors. After weighing the aggravating and mitigating factors, the court found that the sentence was appropriate, just below the mid-range of objective seriousness. The court concluded that the sentence of 3 years and 4 months, with a non-parole period of 2 years and 1 month, was just and appropriate.

The court dismissed the appeal and upheld the sentence. The court found that the appellant's financial gain from the offence was an aggravating factor, but the mitigating factors of the early guilty plea, remorse, and previous drug use were significant. The court considered the appellant's prospects of rehabilitation and the need to deter others from engaging in similar conduct. The court found that the sentence was appropriate and just, taking into account all the relevant factors.

The court ordered that the appellant be convicted and sentenced to a term of imprisonment of 3 years and 4 months, with a non-parole period of 2 years and 1 month. The appellant would be eligible for parole release on 24 February 2018, and the additional term would expire on 23 March 2019. The sentence was to commence on 24 November 2015.

Orders

Orders of the court

1. The offender is convicted;

2. The offender is sentenced to a term of imprisonment of 3 years and 4 months comprised of a non-parole period of 2 years 1 months and an additional term of 1 year and 1 months;

3. The offender will be eligible to be released to parole on 24 February 2018; and the additional term will expire on 23 March 2019; and

4. The sentence is to commence on 24 November 2015.

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 Nassim Eid [2017] NSWDC 69
Hearing dates:	3 March 2017
Date of orders:	31 March 2017
Decision date:	31 March 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	1. The offender is convicted; 2. The offender is sentenced to a term of imprisonment of 3 years and 4 months comprised of a non-parole period of 2 years 1 months and an additional term of 1 year and 1 months; 3. The offender will be eligible to be released to parole on 24 February 2018; and the additional term will expire on 23 March 2019; and 4. The sentence is to commence on 24 November 2015.
Catchwords:	CRIMINAL LAW – drug offences – supply less than commercial quantity of cocaine – high purity SENTENCE – just below mid-range of objective seriousness – aggravating factors – financial gain – conditional liberty – mitigating factors – early plea of guilty – remorse – previous drug use – commencement date of sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 21A(2), 21A(3) and 32(1) Crimes Act 1900 (NSW) s 193C(1) Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 29(a), 32(1), and 43 Drug Misuse and Trafficking Regulation 2011 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146 Hutton v R [2008] NSWCCA 99 Frigiani v R [2007] NSWCCA 81 R v Clark (Unreported, NSW Court of Criminal Appeal, 15 March 1990) R v Dang [2005] NSWCCA 430 R v Henry (1999) 46 NSWLR 346 R v Selim (Unreported, NSW Court of Criminal Appeal, 19 May 1998) R v Shi [2004] NSWCCA 135 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97 Wat v R [2017] NSWCCA 62 Vu v R [2006] NSWCCA 188
Category:	Sentence
Parties:	Regina (Crown) Mr Nassim Eid (Offender)
Representation:	Solicitors: Solicitor for the Director of Public Prosecutions (Crown) McGirr Lawyers (Offender) Counsel: Mr M Smith (Offender)
File Number(s):	2015/161235
Publication restriction:	Nil