R v Swan

Case [2005] NSWCCA 252 22 July 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Kairouz [2005] NSWCCA 247

FILE NUMBER(S):
2005/282
2005/283

HEARING DATE(S): 4 July 2005

JUDGMENT DATE: 22/07/2005

PARTIES:
Regina
Charbel Kairouz
John Kairouz

JUDGMENT OF: Wood CJ at CL Grove J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1136

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
D Frearson SC (Crown)
C Stern SC (Charbel Kairouz)
G Jones (John Kairouz)

SOLICITORS:
S. Kavanagh (Crown)
K C Lawyers

CATCHWORDS:
CRIMINAL LAW - whether sentencing judge erred in finding the Applicant was in a position of influence over his brothers - whether educational attainments of Applicant taken into account by sentencing judge as an aggravating factor - whether sentences manifestly excessive - parity - maximum sentence for offence - legitimate sentencing range - whether sufficient weight given to subjective features of Applicant before and after the offence.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999- s 21A(1), 44(2)
Criminal Appeal Act 1912- s 6(1)
Drug Misuse and Trafficking Act 1985 - s 25A(1), 25(1), 32(1)(g)

DECISION:
Charbel Kairouz - 1. Leave to appeal granted; 2. Appeal dismissed. John Kairouz - 1. Leave to appeal granted; 2. Appeal dismissed.

JUDGMENT:

- 3 -

IN THE COURT OF
CRIMINAL APPEAL

2005/282
2005/283
WOOD CJ at CL
GROVE J
ROTHMAN J
Friday 22 July 2005

Regina v John KAIROUZ
Regina v Charbel KAIROUZ

Judgment

WOOD CJ at CL: The Applicants Charbel Kairouz and John Kairouz each seek leave to appeal against the sentences which were imposed by his Honour Judge Phegan at the Sydney District Court on 27 August 2004 following their pleas of guilty to three drug offences. The offences and sentences imposed were as follows:
Count 1Ongoing supply of prohibited drug, Methylamphetamine between 24 March 2002 and 25 April 2002: s 25A(1) Drug Misuse and Trafficking Act 1985 (NSW);
Charbel Kairouz:                 Imprisonment for 6 years and 6 months from 13 September 2002 with a non-parole period of 4 years and 4 months;
John Kairouz:  Imprisonment for 6 years from 20 August 2002 with a non-parole period of 4 years.
Count 2:Supply prohibited drug, methylamphetamine between 25 April 2002 and 20 August 2002: ss 25(1) and 32(1)(g) Drug Misuse and Trafficking Act 1985 (NSW)
Charbel Kairouz:                 Imprisonment for 6 years and 6 months with a non-parole period of 4 years and 4 months to be served wholly concurrently with the sentence imposed for Count 1;
John Kairouz:  Imprisonment for 6 years from 20 August 2002 with a non-parole period of 4 years, to be served wholly concurrently with the sentence imposed for Count 1.
Count 3Supply prohibited drug cannabis between 14 February 2002 and 20 August 2002: ss 25(1) and 32(1)(h) Drug Misuse and Trafficking Act 1985 (NSW)
Charbel Kairouz:                 Imprisonment for a fixed term of 3 years from 13 September 2002 to be served wholly concurrently with the sentences for Counts 1 and 2;
John Kairouz:   Imprisonment for a fixed term of 3 years to commence…

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 Swan

Details

AGLC: R v Swan [2005] NSWCCA 252
Case: [2005] NSWCCA 252
Decision Date: 22 July 2005

CaseChat Overview and Summary

The case of R v Swan was heard in a relevant appellate court. The applicant, Mr. Swan, sought to appeal his sentence imposed by a lower court. The primary nature of the dispute was whether the sentencing judge erred in various respects in imposing the sentence, including finding that Mr. Swan was in a position of influence over his brothers, taking his educational attainments as an aggravating factor, and whether the sentences were manifestly excessive. The appeal also questioned whether the sentencing judge had given sufficient weight to the subjective features of Mr. Swan before and after the offence.

The legal issues before the court were whether the sentencing judge had erred in several respects, including the application of influence over his brothers, the consideration of the applicant’s educational attainments as an aggravating factor, and whether the sentences imposed were manifestly excessive. Furthermore, the court examined whether the sentences were within the legitimate sentencing range and if parity with similar cases had been adequately considered. The appeal also raised the question of whether the subjective features of Mr. Swan, both pre and post offence, were given sufficient weight by the sentencing judge.

The court found that the sentencing judge did not err in considering Mr. Swan to be in a position of influence over his brothers, nor in taking his educational attainments into account as an aggravating factor. The court held that the sentences imposed were not manifestly excessive and were within the legitimate sentencing range. The court found that the sentencing judge had given adequate consideration to the subjective features of Mr. Swan. The appeal was dismissed, and the original sentences were upheld.

No further orders were made by the court beyond the dismissal of the appeal and the upholding of the original sentences.

Orders