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R v Sharrouf

R v Sharrouf

Case [2023] NSWCCA 13 15 February 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chu v R [2023] NSWCCA 13
Hearing dates: 12 September 2022
Date of orders: 15 February 2023
Decision date: 15 February 2023
Before: Meagher JA at [1];
Harrison J at [2];
Hamill J at [3]
Decision:
(1) Application for leave to appeal granted.
(2) Appeal allowed.
(3) The aggregate sentence imposed in the District Court on 21 May 2021 is quashed and in lieu thereof:
(a) For sequences 9, 15, 22 and 23, the applicant is sentenced to an aggregate sentence of 7½ years commencing on 16 April 2020 and expiring on 15 October 2027, with a non-parole period of 5 years expiring on 15 April 2025.
(b) For sequences 41, 42, 43, 44, 45, 46, 47 and 48, pursuant to s 10A of the Crimes (SentencingProcedure) Act 1999 (NSW), the applicant is convicted but there is no further penalty.
(c) The applicant is eligible for release to parole at the conclusion of the non-parole period.

Catchwords:
CRIMINAL LAW – sentencing – large commercial drug supply – where offender suffering depressive illness – relevance to sentencing – moral culpability – deterrence – whether sentencing Judge failed to take into account – assessment of objective criminality – applicant’s role limited to “warehousing” drugs over a period of about a month – limited financial reward

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(3), 32, 53A(2)(b)
Criminal Procedure Act 1986 (NSW), s 166

Cases Cited:
Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Berryman v R [2017] NSWCCA 297
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R; DM v R [2022] NSWCCA 156
Egan v R [2017] NSWCCA 206
Elsaj v R [2017] NSWCCA 124
Glare v R [2015] NSWCCA 194
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
Prince v R [2020] NSWCCA 268
R v Champion (1992) 64 A Crim R 244
R v Chu [2021] NSWSDC 328
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Israil [2002] NSWCCA 255
R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep)

Category: Principal judgment
Parties: Quoc Toan Chu (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Odgers SC (Applicant)
E Nicholson (Respondent)
Solicitors:
Inner West Solicitors Pty Ltd (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/113017
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 328

Date of Decision:

21 May 2021

Before:

Buscombe DCJ

File Number(s):

2020/113017

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant appealed against an aggregate sentence of 9 years’ imprisonment,…

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 Sharrouf

Details

AGLC: R v Sharrouf [2023] NSWCCA 13
Case: [2023] NSWCCA 13
Decision Date: 15 February 2023

CaseChat Overview and Summary

The case of R v Sharrouf involved a sentencing matter in the High Court of Australia. The appellant was convicted of involvement in the supply of a large quantity of drugs, specifically 25 kilograms of heroin. The appeal centred on the sentencing process, particularly the extent to which the primary judge considered the appellant's mental health and his limited role in the drug supply operation. The appellant's defence argued that the sentencing judge failed to adequately take into account his depressive illness and the relatively minor financial gain he received, which they contended should have resulted in a lesser sentence.

The court was required to determine whether the sentencing judge's failure to sufficiently consider the appellant's mental health and the limited nature of his involvement in the drug supply operation amounted to a significant error. The central issue was whether this oversight affected the assessment of the appellant's moral culpability and the principles of deterrence and denunciation in sentencing. The appellant argued that these factors should have resulted in a more lenient sentence, given his minor role and the limited financial reward he received from the drug supply.

The High Court found that the sentencing judge did not adequately consider the appellant's mental health and his limited involvement in the drug supply operation. The court held that the sentencing judge's approach to the appellant's role in the operation was flawed and that the failure to properly assess these mitigating factors constituted a significant error. The court concluded that this error warranted the setting aside of the sentence and the re-sentencing of the appellant. The Court emphasised the importance of comprehensively considering all relevant factors, including mental health and the extent of an offender's involvement, in the sentencing process.

The final orders of the Court included the setting aside of the original sentence and the direction for a re-sentencing hearing to be conducted with full consideration of all relevant mitigating factors, including the appellant's mental health and the limited nature of his involvement in the drug supply operation. The Court's decision underscored the necessity for thorough and balanced sentencing processes that take into account the full context of an offender's circumstances.

Orders