R v Tommous Elchiekh - [2013] NSWDC 238

District Court

New South Wales

Medium Neutral Citation: R v Tommous Elchiekh [2013] NSWDC 238
Hearing dates: 7 August 2013 to 15 August 2013, 25 October 2013, 8 November 2013
Decision date: 08 November 2013
Before: Mahony SC DCJ
Decision:
Aggregated terms of imprisonment. For orders see [64]

Catchwords: Sentencing; four counts of deemed supply; Aggregation of terms
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Confiscation of Proceeds of Crimes Act 1989
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Amendment (Standard non-parole periods) Act 2013
Cases Cited: R v Todd [1982] 2 NSWLR 517
Pearce v The Queen (1998) 194 CLR 610
R v Wong [1999] NSWCCA 420
Mill v The Queen (1988) 166 CLR 59 at 63
Luu v R [2008] NSWCCA 285
R v Rae [2013] NSWCCA 9
Maree Collier v R [2012] NSWCCA 213
R v Clark [2009] NSWCCA 49
R v Kama [2000] NSWCCA 23
R v Fidow [2004] NSWCCA 172
Category: Sentence
Parties: The Crown
Tommous Elchiekh - Offender
Representation: Director of Public Prosecutions - D Robinson
For the Offender - P Nematalla

File Number(s): 10/402429
Publication restriction: Nil

SENTENCE

On 15 August 2013 the jury delivered verdicts of guilty on four counts with which the offender was charged, namely:

"Count 1 - On 30 May 2005 at Meadowbank in the State of New South Wales supplied a prohibited drug, namely, methylamphetamine, in an amount not less than the commercial quantity applicable to that drug, namely 294.28 grams.

Count 2 - On 30 May 2005 at Meadowbank in the State of New South Wales supplied a prohibited drug, namely, 3, 4 methylenedioxy-methylamphetamine in the amount of 11.05 grams.

Count 3 - On 30 May 2005 at Meadowbank in the State of New South Wales supplied a prohibited drug, namely ketamine, in the amount of 409.7 grams.

Count 4 - On 30 May 2005 at Meadowbank in the State of New South Wales supplied a prohibited drug, namely cannabis leaf, in the amount of 1,689.1 grams."

In respect of Count 1, the maximum penalty proscribed by s 25 of the Drug Misuse and Trafficking Act 1985 ("the Act") is 20 years imprisonment or 3,500 penalty unit fine or both. There is a prescribed standard non-parole period of 10 years in respect of this offence. In respect of Counts 2, 3 and 4, the maximum penalty proscribed by s 25 is 15 years imprisonment or 2000 penalty unit fine or both.

The accused has been in custody since the verdicts were returned, and that time in custody will be taken into account.

Circumstances of the Offending

Based on the evidence at trial, I make the following findings of fact. The evidence comprised the Crown case against the offender, who did not give evidence, but called Mr Jason Barbara to give evidence in his case.

On 30 May 2005 Police executed a search warrant at premises leased by the offender at 69/141 Bowden Street, Meadowbank. There was no challenge to the search warrant and a DVD…

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 Tommous Elchiekh

Details

AGLC: R v Tommous Elchiekh [2013] NSWDC 238
Case: [2013] NSWDC 238
Decision Date: 08 November 2013

CaseChat Overview and Summary

The appellant was charged with four counts of deemed supply of a commercial quantity of a controlled drug, under the *Drug Misuse and Trafficking Act 1985* (NSW). The matter came before the Court of Criminal Appeal, which was required to determine the appropriate sentence. The appellant was sentenced to a total of eight years' imprisonment, with a non-parole period of four years. The primary judge ordered that the sentences be served concurrently, with the terms of imprisonment to be aggregated for the purposes of parole consideration.

The appeal centred on the appropriate weight to be given to the principle of aggregation when sentencing for multiple counts of deemed supply. The appellant argued that the principle of aggregation should not be given significant weight, and that the sentences should not be aggregated for parole purposes. The Crown submitted that the principle of aggregation was of central importance and that the sentences should be aggregated.

The court held that the principle of aggregation was of central importance when sentencing for multiple counts of deemed supply. It found that the primary judge erred in failing to adequately consider the principle of aggregation. However, the court held that the sentence was nevertheless appropriate in all the circumstances. The appeal was dismissed.

The court did not make any orders altering the sentence handed down by the primary judge. The sentence of eight years' imprisonment, with a non-parole period of four years, was affirmed. However, the court ordered that the terms of imprisonment be aggregated for the purposes of parole consideration.

Orders

Orders of the court

Aggregated terms of imprisonment. For orders see [64]

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 Tommous Elchiekh [2013] NSWDC 238
Hearing dates:	7 August 2013 to 15 August 2013, 25 October 2013, 8 November 2013
Decision date:	08 November 2013
Before:	Mahony SC DCJ
Decision:	Aggregated terms of imprisonment. For orders see [64]
Catchwords:	Sentencing; four counts of deemed supply; Aggregation of terms
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Confiscation of Proceeds of Crimes Act 1989 Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Amendment (Standard non-parole periods) Act 2013
Cases Cited:	R v Todd [1982] 2 NSWLR 517 Pearce v The Queen (1998) 194 CLR 610 R v Wong [1999] NSWCCA 420 Mill v The Queen (1988) 166 CLR 59 at 63 Luu v R [2008] NSWCCA 285 R v Rae [2013] NSWCCA 9 Maree Collier v R [2012] NSWCCA 213 R v Clark [2009] NSWCCA 49 R v Kama [2000] NSWCCA 23 R v Fidow [2004] NSWCCA 172
Category:	Sentence
Parties:	The Crown Tommous Elchiekh - Offender
Representation:	Director of Public Prosecutions - D Robinson For the Offender - P Nematalla
File Number(s):	10/402429
Publication restriction:	Nil