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R v Younan

R v Younan

Case [2018] NSWCCA 180 22 August 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Younan [2018] NSWCCA 180
Hearing dates: 1 August 2018
Decision date: 22 August 2018
Before: Gleeson JA at [1];
R A Hulme J at [2];
Button J at [101]
Decision:
1. Crown appeal against sentence allowed.
2. Aggregate sentence imposed in the District Court on 25 May 2018 quashed and in lieu the offender is sentenced to an aggregate term of imprisonment for 7 years with a non-parole period of 4 years 6 months.

Catchwords: CRIME – Crown sentence appeal – drugs and firearms supply offences – s 25A of Drug Misuse and Trafficking Act does apply to offences where offender did not actually obtain financial or material reward – s 25A does apply to offences where actual financial or material reward did not occur – whether judge erred in assessment of objective seriousness of ongoing drug supply offences – not necessary to determine – whether sentence manifestly inadequate – gross criminality inherent in offending could not be reflected in sentence imposed – subjective circumstances did not warrant such leniency – ground upheld – appeal allowed
Legislation Cited: Crimes Act 1900 (NSW) ss 93T(4A), 193C
Criminal Procedure Act 1986 (NSW) s 166
Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 25A
Firearms Act 1996 (NSW) s 36
Cases Cited: Ahmad v R [2012] NSWCCA 273
CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
El Jamal v R [2017] NSWCCA 243
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
Linden v R [2017] NSWCCA 321
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mirza v R [2007] NSWCCA 248
MRN v R [2006] NSWCCA 155
Mulato v R [2006] NSWCCA 282
Nguyen, The Tao v R [2018] NSWCCA 176
R v Cahill [2015] NSWCCA 53
R v CTG [2017] NSWCCA 163
R v Ejefekaire [2016] NSWCCA 308
R v El-Ahmad [2015] NSWCCA 65
R v Elliott [2018] NSWCCA 69
R v GWM [2012] NSWCCA 240
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47
R v Smith [2002] NSWCCA 378
R v Wong [2018] NSWCCA 20
Ritter v R [2012] NSWCCA 121
Stack v R [2008] NSWCCA 271
Vu v R [2006] NSWCCA 188
Watkins v R [2018] NSWCCA 24
Texts Cited: Drug Misuse and Trafficking Amendment (Ongoing Dealing) Bill 1998, New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 June 1998 at 6382
Category: Principal judgment
Parties: Regina (Appellant)
John Younan (Respondent)
Representation:
Counsel:
Ms B Baker (Crown)
Mr J Klarica (Respondent)
Solicitors:
Solicitor for Public Prosecutions
Skopelja Solicitors

File Number(s): 2016/191741
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

25 May 2018

Before:

Grogin ADCJ

File Number(s):

2016/191741

Judgment

GLEESON JA: I agree with R A Hulme J.
R A HULME J: The Crown appeals against the…

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 Younan

Details

AGLC: R v Younan [2018] NSWCCA 180
Case: [2018] NSWCCA 180
Decision Date: 22 August 2018

CaseChat Overview and Summary

The appeal before the court involved a respondent, Younan, who had been convicted of multiple offences related to the supply of drugs and firearms. The Crown, acting as the appellant, sought to appeal the sentence imposed by the primary judge, contending that it was manifestly inadequate. The matter was heard in the Court of Appeal, where the appellant argued that the sentence did not appropriately reflect the gravity of the respondent's criminal conduct.

The central legal issues before the court were whether section 25A of the Drug Misuse and Trafficking Act applied to the respondent's offences, despite the absence of financial or material reward, and whether the sentence imposed was manifestly inadequate. Additionally, the court had to assess the objective seriousness of the respondent's ongoing drug supply offences and determine if the sentence adequately reflected the inherent criminality of the offending.

The court found that section 25A of the Act applied to the respondent's offences, even in the absence of a direct financial or material reward. The court concluded that the inherent criminality in the respondent's ongoing drug supply offences warranted a more severe sentence. The primary judge's assessment of the objective seriousness of the offences was not found to be erroneous, but the sentence imposed did not adequately reflect the gross criminality inherent in the offending. The court held that the subjective circumstances of the respondent did not warrant such leniency, and thus, the appeal was upheld, and the sentence was deemed manifestly inadequate. Consequently, the appeal was allowed.

Orders