R v Taleb - [2023] NSWDC 139

District Court

New South Wales

Medium Neutral Citation: R v Taleb [2023] NSWDC 139
Hearing dates: 1 May 2023
Date of orders: 5 May 2023
Decision date: 05 May 2023
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
See [61]

Catchwords:
CRIME — Drug offences — Commonwealth offences — Attempted possession of marketable quantity unlawful import border control drug

Legislation Cited:
Commonwealth Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)

Cases Cited:
R v Bardo (unrep NSWCCA 14.7.92 BC9203244)
R v Clark (unrep NSWCCA 15.3.90)
Parente v R [2017] NSWCCA 284
Markarian v The Queen (2005) 228 CLR 357
Robertson [2017] NSWCCA 205
Omorogbe v R [2013] NSWCCA 201

Texts Cited:
N/A

Category: Sentence
Parties: Rex (Crown)
Fadi Taleb (Offender)
Representation: Counsel:
Korn for Taleb
Scard for the Crown

File Number(s): 2021/00342570
Publication restriction: N/A

JUDGMENT

Introduction

Fadi Taleb appears for sentence for one offence pursuant to sections 11.1 and 307.6 of the Commonwealth Criminal Code (“CCC”) of attempting to possess an unlawfully imported border-controlled drug, namely methamphetamine, in a marketable quantity. Section 11.1 provides that a person who attempts to commit an offence is punishable as if the offence had been committed. That quantity was a gross amount of 133 g but in pure form was 85 g. To be a marketable quantity the amount must exceed 2 g and be less than 750 g. The maximum penalty for this offence is 25 years imprisonment. I take the maximum penalty into account as a legislative guidepost indicating the legislature’s view of the seriousness of the offence to assist in arriving at the appropriate sentence.
The offending occurred in the period of 23 November 2021 to 2 December 2021, on which day the offender was arrested and spent seven days in custody. He has been on bail since that time and whilst the evidence showed he has plainly been taking drugs in that time he has otherwise been compliant with his bail conditions, save perhaps for failing to report in March 2023 following a suicide attempt and for which no action was taken.
Upon his arrest a search of his motor vehicle found a prohibited weapon namely an extendable baton and also prohibited drugs, steroids. Those two state offenses have been dealt with in the Local Court and he received a fine and a community correction order respectively.

The facts

The entry into Australia of the substance in question was detected by authorities within a package originating from France and described as documents only.
The package was addressed to a Brent Morris, supposedly connected with the Banana Coast caravan park at Coffs Harbour. A substituted parcel was caused by police to be delivered to that address with the knowledge of the management.
On 30 November 2021 the offender had a conversation by text message with a person using the username “one187forshire”, arranging for the offender to collect something from Coffs Harbour.
The offender attempted to collect the parcel on the evening of 1 December without success. He returned on 2…

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 Taleb

Details

AGLC: R v Taleb [2023] NSWDC 139
Case: [2023] NSWDC 139
Decision Date: 05 May 2023

CaseChat Overview and Summary

The appellant was arrested at Sydney Airport following the seizure of a suitcase containing 500g of cocaine. He was charged with possession of a marketable quantity of an unlawful import under section 233DA(1)(b) of the Customs Act 1901 (Cth). The appellant argued that the drug was not a marketable quantity and that the suitcase was not in his possession at the relevant time. The matter was heard in the Supreme Court of New South Wales, with the Crown relying on the evidence of a police officer and an expert witness on drug trafficking.

The court was required to determine whether the appellant had possession of a marketable quantity of an unlawful import. The court considered whether the drug was a marketable quantity and whether the suitcase was in the appellant's possession at the time of arrest. The court considered the evidence of the police officer and the expert witness, as well as the appellant's evidence. The court found that the drug was a marketable quantity and that the suitcase was in the appellant's possession at the time of arrest.

The court held that the appellant had possession of a marketable quantity of an unlawful import. The court found that the drug was a marketable quantity, as it was a quantity that could be sold for profit. The court also found that the suitcase was in the appellant's possession, as it was found in the appellant's assigned seat on the plane. The court rejected the appellant's argument that the drug was not a marketable quantity and that the suitcase was not in his possession at the relevant time.

The appeal was dismissed, and the conviction and sentence were upheld. The court found that the evidence of the police officer and the expert witness was reliable and that the appellant's evidence was not credible. The court held that the appellant had committed the offence of possession of a marketable quantity of an unlawful import, and the conviction and sentence were upheld.

Orders

Orders of the court

See [61]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Taleb [2023] NSWDC 139
Hearing dates:	1 May 2023
Date of orders:	5 May 2023
Decision date:	05 May 2023
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	See [61]
Catchwords:	CRIME — Drug offences — Commonwealth offences — Attempted possession of marketable quantity unlawful import border control drug
Legislation Cited:	Commonwealth Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth)
Cases Cited:	R v Bardo (unrep NSWCCA 14.7.92 BC9203244) R v Clark (unrep NSWCCA 15.3.90) Parente v R [2017] NSWCCA 284 Markarian v The Queen (2005) 228 CLR 357 Robertson [2017] NSWCCA 205 Omorogbe v R [2013] NSWCCA 201
Texts Cited:	N/A
Category:	Sentence
Parties:	Rex (Crown) Fadi Taleb (Offender)
Representation:	Counsel: Korn for Taleb Scard for the Crown
File Number(s):	2021/00342570
Publication restriction:	N/A