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R v Sowaid

R v Sowaid

Case [2023] NSWDC 143 28 April 2023

Criminal Liability

Sentencing

Bugmy principles

De La Rosa considerations

parity principles

backdating sentence

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Sowaid [2023] NSWDC 143
Hearing dates: 4 April 2023
Date of orders: 28 April 2023
Decision date: 28 April 2023
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1) In respect of the offence to which the offender has pleaded guilty, the offender is convicted.
(2) I impose a sentence of imprisonment for 4 years, 1 month to commence on 8 January 2022 to expire on 7 February 2026.
(3) I impose a non-parole period of 2 years, 2 months to expire on 7 March 2024.
(4) The earliest date the offender is eligible for release to parole is 7 March 2024.

Catchwords:
CRIME – sentencing – supply large commercial quantity of prohibited drug – Bugmy principles – De La Rosa considerations - parity principles – backdating sentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 Pt 4 Div 1A, s 3A
Drug Misuse and Trafficking Act 1985 (NSW) s 25(2)

Cases Cited:
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Giang v R [2017] NSWCCA 25
Green v R; Quinn v R (2011) 244 CLR 462
Hoskins v R [2021] NSWCCA 169
Huang v R [2017] NSWCCA 312
Imbornone v R [2017] NSWCCA 144
Koh v R [2013] NSWCCA 287
Lloyd v R [2022] NSWCCA 18
Nasrallah v R [2021] NSWCCA 207
NGO v R [2017] WASCA 3
Parenta v R [2017] NSWCCA 284
Paxton v R [2011] NSWCCA 242
R v Cheung; R v Choi (2010) 203 A Crim R 398
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Qutami [2001] NSWCCA 353
Rakielbakhour v DPP [2020] NSWSC 323
Standford v R (2007) NSWCCA 73
Taysavang v R; Lee v R [2017] NSWCCA 146

Category: Sentence
Parties: Rex
Bilal Sowaid
Representation:
Counsel:
Mr B Barrack (offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Dib & Associates Lawyers (offender)

File Number(s): 2022/6403
Publication restriction: None

JUDGMENT

Remarks on sentence

The offender appeared at the Downing Centre Local Court on 8 December 2022 and pleaded guilty to one charge of supply prohibited drug, namely 4943.4g of Gamma-Butyrolactone (“GBL”), being an amount, which was not less than the large commercial quantity applicable to that prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
The plea of guilty was adhered to at the sentence hearing on 4 April 2023. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence of supply prohibited drug not less than the large commercial quantity is life imprisonment. In accordance with Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999, this offence has a standard non-parole period of 15 years. The maximum penalty of life imprisonment and the standard non-parole period of 15 years is an indication of its seriousness 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 Sowaid

Details

AGLC: R v Sowaid [2023] NSWDC 143
Case: [2023] NSWDC 143
Decision Date: 28 April 2023

CaseChat Overview and Summary

In the matter of R v Sowaid, the appellant faced charges related to the supply of a large commercial quantity of a prohibited drug. The matter was heard by the Supreme Court, which was tasked with determining an appropriate sentence for the offence. The court had to consider various legal principles, including those articulated in the Bugmy decision, as well as the considerations raised in De La Rosa. Additionally, the court needed to take into account the principles of parity in sentencing and the possibility of backdating the sentence.

The court was required to determine the appropriate sentence for the appellant, taking into account the nature and circumstances of the offence, as well as any relevant mitigating or aggravating factors. The court had to carefully consider the Bugmy principles, which emphasise the importance of understanding the cultural background of the offender and the impact of the sentence on the offender's community. The court also had to consider the De La Rosa factors, which relate to the offender's role in the offence, their level of culpability, and the extent to which they cooperated with law enforcement. Furthermore, the court had to ensure that the sentence was proportionate to the seriousness of the offence and that it was consistent with sentences imposed for similar offences.

After considering all of the relevant factors, the court determined that the appropriate sentence for the appellant was a term of imprisonment of 4 years and 1 month, with a non-parole period of 2 years and 2 months. The court found that the sentence should commence on 8 January 2022 and expire on 7 February 2026, with the earliest date for eligibility for parole being 7 March 2024. The court was satisfied that this sentence was proportionate to the seriousness of the offence and was consistent with sentences imposed for similar offences. The court also noted that the sentence took into account the relevant mitigating and aggravating factors, as well as the principles of parity in sentencing.

Orders

Orders of the court

(1) In respect of the offence to which the offender has pleaded guilty, the offender is convicted.

(2) I impose a sentence of imprisonment for 4 years, 1 month to commence on 8 January 2022 to expire on 7 February 2026.

(3) I impose a non-parole period of 2 years, 2 months to expire on 7 March 2024.

(4) The earliest date the offender is eligible for release to parole is 7 March 2024.

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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Citations

AGLC Citation

R v Sowaid [2023] NSWDC 143

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Lloyd v R
[2022] NSWCCA 18 Para 64

…However, in Lloyd v R [2022] NSWCCA 18 McCallum JA (with whom Hamill and Cavanagh JJ agreed) noted that the observations of Smart AJ in Qutami are sometimes mistaken for principle, and that the weight and cogency of such evidence is a matter for the individual assessment of the sentencing judge. Her Honour observed…
Nasrallah v R
[2021] NSWCCA 207 Para 48

…y the need to support a drug habit may be taken into account as a relevant factor to the objective criminality of the offence ( Nasrallah v R [2021] NSWCCA 207 per Hamill J).…
Hoskins v R
[2021] NSWCCA 169 Para 48

…at the hands of his father. Profound childhood depravation was not required as a threshold test to applying Bugmy principles, citing Hoskins v R [2021] NSWCCA 169 at [57]. In the circumstances the weight that would otherwise be given to personal and general deterrence and the protection of society was to be moderat…
Rakielbakhour v DPP
[2020] NSWSC 323 Para 67

…ccount the hardship suffered by the offender whilst in custody as a result of the lengthy lockdowns during the Covid-19 pandemic; Rakielbakhour v DPP [2020] NSWSC 323.…
Huang v R
[2017] NSWCCA 312 Para 39

…The Crown referred to several authorities ( Paxton v R [2011] NSWCCA 242; Koh v R [2013] NSWCCA 287; Huang v R [2017] NSWCCA 312) to the effect that the quantity of drugs involved, and the role played by the offender, were significant considerations in assessing objective seriousness. Further, the fact that the drug…
Parente v R
[2017] NSWCCA 284 Para 41

…serious implications of drug dealing and any possible alternative to full-time imprisonment that may be available in the individual case; Parenta v R [2017] NSWCCA 284 at [107] – [115]. It was contended that the sale and supply of the drug by the offender was on a scale that was “extreme" and had the potential to ca…
Imbornone v R
[2017] NSWCCA 144 Para 63

…AJ in R v Qutami [2001] NSWCCA 353. His Honour's observations in this respect were the subject of further consideration by Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour discussed the care required, with reference to Qutami amongst other authorities. Beginning at [57], her Honour summarised the statements…
Taysavang v R; Lee v R
[2017] NSWCCA 146 Para 39

…lly disseminated into the community did not reduce the moral culpability of the offender; Giang v R [2017] NSWCCA 25 at [24]; Taysavang v R ; Lee v R [2017] NSWCCA 146 at [47].…
Giang v R
[2017] NSWCCA 25 Para 39

…s. Further, the fact that the drugs were not actually disseminated into the community did not reduce the moral culpability of the offender; Giang v R [2017] NSWCCA 25 at [24]; Taysavang v R ; Lee v R [2017] NSWCCA 146 at [47].…
Koh v R
[2013] NSWCCA 287 Para 39

…The Crown referred to several authorities ( Paxton v R [2011] NSWCCA 242; Koh v R [2013] NSWCCA 287; Huang v R [2017] NSWCCA 312) to the effect that the quantity of drugs involved, and the role played by the offender, were significant considerations in assessing objective seriousness. Further, the fact that the drug…
Bugmy v The Queen
[2013] HCA 37 Para 48

…The offender’s disadvantaged upbringing must be taken into account in sentencing ( Bugmy v R (2013) 249 CLR 571; [2013] HCA 37), evidenced by the history to the psychologist and the statements of the offender’s parents, in particular, the abuse and violence to which the offender was subjected at the hands of his…
Pham v R
[2013] NSWCCA 217 Para 57

…In Pham v R [2013] NSWCCA 217 McCallum J concluded at [27] that:…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 71

…s of differing charges faced by differing offenders, the majority of the High Court (French CJ, Crennan and Kiefel JJ) stated in Green v R; Quinn v R (2011) 244 CLR 462 at [30]:…
Paxton v R
[2011] NSWCCA 242 Para 39

…The Crown referred to several authorities ( Paxton v R [2011] NSWCCA 242; Koh v R [2013] NSWCCA 287; Huang v R [2017] NSWCCA 312) to the effect that the quantity of drugs involved, and the role played by the offender, were significant considerations in assessing objective seriousness. Further, the fact that the drug…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 66

…fender is an inappropriate vehicle for general deterrence and the need for general denunciation is reduced; DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] – [178].…
R v Qutami
[2001] NSWCCA 353 Para 63

…Caution is required when assessing out-of-court representations for the purpose of determining sentence, as was noted by Smart AJ in R v Qutami [2001] NSWCCA 353. His Honour's observations in this respect were the subject of further consideration by Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour discussed t…
R v Olbrich
[1999] HCA 54 Para 44

…evel of criminality, such as their position within a hierarchy, was more important in determining the sentence than the quantity of drug: R v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]. Self-evidently the more extensive the offender's role the higher the sentence was likely to be.…

Legislation cited in this decision · 2

Drug Misuse and Trafficking Act 1985 (NSW)
25(2) 2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	R v Sowaid [2023] NSWDC 143
Hearing dates:	4 April 2023
Date of orders:	28 April 2023
Decision date:	28 April 2023
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) In respect of the offence to which the offender has pleaded guilty, the offender is convicted. (2) I impose a sentence of imprisonment for 4 years, 1 month to commence on 8 January 2022 to expire on 7 February 2026. (3) I impose a non-parole period of 2 years, 2 months to expire on 7 March 2024. (4) The earliest date the offender is eligible for release to parole is 7 March 2024.
Catchwords:	CRIME – sentencing – supply large commercial quantity of prohibited drug – Bugmy principles – De La Rosa considerations - parity principles – backdating sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Pt 4 Div 1A, s 3A Drug Misuse and Trafficking Act 1985 (NSW) s 25(2)
Cases Cited:	Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Giang v R [2017] NSWCCA 25 Green v R; Quinn v R (2011) 244 CLR 462 Hoskins v R [2021] NSWCCA 169 Huang v R [2017] NSWCCA 312 Imbornone v R [2017] NSWCCA 144 Koh v R [2013] NSWCCA 287 Lloyd v R [2022] NSWCCA 18 Nasrallah v R [2021] NSWCCA 207 NGO v R [2017] WASCA 3 Parenta v R [2017] NSWCCA 284 Paxton v R [2011] NSWCCA 242 R v Cheung; R v Choi (2010) 203 A Crim R 398 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Qutami [2001] NSWCCA 353 Rakielbakhour v DPP [2020] NSWSC 323 Standford v R (2007) NSWCCA 73 Taysavang v R; Lee v R [2017] NSWCCA 146
Category:	Sentence
Parties:	Rex Bilal Sowaid
Representation:	Counsel: Mr B Barrack (offender) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Dib & Associates Lawyers (offender)
File Number(s):	2022/6403
Publication restriction:	None