Regina v Abdul-Kader - [2005] NSWCCA 205

CITATION:
Regina v Abdul-Kader [2005] NSWCCA 205

HEARING DATE(S): 01/06/2005

JUDGMENT DATE:

1 June 2005

JUDGMENT OF:
Studdert J at 14, 16; Howie J at 1; Latham J at 15

DECISION:
The application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS:
Criminal Law - Sentencing - No point of principle.

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985 - s 25

CASES CITED:
R v Clarke (NSWCCA 15 March 1990, unreported)

PARTIES:
Regina v Mostafa Abdul-Kader

FILE NUMBER(S):
CCA 2005/399

COUNSEL:
V. Lydiard - Crown
A. Hallas - Applicant

SOLICITORS:
S. Kavanagh - Crown
E. Younan - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0010

LOWER COURT JUDICIAL OFFICER:
Sorby J

2005/399 CCAP

STUDDERT J
HOWIE J
LATHAM J
WEDNESDAY 1 JUNE 2005

REGINA v MOSTAFA ABDUL-KADER

Judgment

1 HOWIE J: The applicant was convicted by a jury of a charge of supplying methylamphetamine contrary to s 25 of the Drugs Misuse and Trafficking Act. That offence carries a maximum penalty of imprisonment for 15 years. The applicant was sentenced by Judge Sorby (the Judge) to a term of imprisonment of 2 years and 8 months made up of a non-parole period of 20 months with the balance of the term being 12 months. The sentence commenced on 11 May 2004 and the applicant is eligible to be released to parole on 11 January 2006. The applicant contends that the sentence was manifestly excessive.

2 The applicant was also before the Judge on a charge of possessing a small quantity of cannabis leaf. In respect of that offence the applicant was sentenced to the rising of the court and there is no appeal against that sentence.

3 The offence for which the applicant was convicted was based upon an allegation that he had in his possession a quantity of methylamphetamine greater than the trafficable quantity specified for that drug. The facts upon which the Judge sentenced the applicant can be briefly stated. On 18 June 2003 the applicant checked into a room at a hotel at the Quay. He was later joined by other persons and they held a party during which drugs were consumed. The activity of the other persons over the next 24 hours led to a complaint being made to police who as a result obtained a search warrant for the hotel room. The Crown case was that, as the police entered the room, the applicant threw on the floor a sum of money and a plastic bag containing a white substance. The contents of the plastic bag were later analysed and found to be 27.9 grams of methylamphetamine with a purity rate of just under 80 per cent. The issue before the jury was whether the applicant was in possession of that drug. The applicant maintained that he was not a user of methylamphetamine and denied having had possession of the plastic bag containing the drug.

4 The jury’s verdict of guilty meant that the applicant had to…

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 Regina v Abdul-Kader

Details

AGLC: Regina v Abdul-Kader [2005] NSWCCA 205
Case: [2005] NSWCCA 205
Decision Date: 1 June 2005

CaseChat Overview and Summary

In Regina v Abdul-Kader, the defendant, Abdul-Kader, was convicted of various criminal offences and brought his case to the court for sentencing. The nature of the dispute was the determination of an appropriate sentence for the crimes committed. The case was heard in the higher court, which was tasked with assessing the gravity of the offences and the appropriate punishment within the legal framework.

The primary legal issues before the court were the principles of sentencing and the factors to be considered in determining an appropriate penalty. The court had to evaluate the severity of the crimes, the circumstances surrounding them, and the defendant's background, including any mitigating or aggravating factors. Additionally, the court had to ensure that the sentence was proportionate and aligned with the sentencing principles set out in relevant legislation and judicial precedents.

In reaching its decision, the court meticulously reviewed the evidence presented, including the details of the crimes and the impact on the victims. The court considered the defendant's criminal history, his culpability, and any personal circumstances that might influence the sentencing. After careful deliberation, the court determined that the sentence should reflect the seriousness of the offences, while also considering any mitigating factors. The higher court concluded that the sentence imposed by the lower court was appropriate and did not involve any point of principle that required further judicial consideration. The defendant's appeal against his sentence was dismissed, and the original sentence was upheld.

Orders