Regina v Elomar - [2000] NSWCCA 431

CITATION: Regina v Elomar [2000] NSWCCA 431

FILE NUMBER(S): CCA 60588/99

HEARING DATE(S): 21 February 2000

JUDGMENT DATE:
21 February 2000

PARTIES :

Regina v Khaled Elomar

JUDGMENT OF: Hidden J at 14; Carruthers AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/0186

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : J S Andrews (Applicant)
D M L Woodburne (Crown/Respondent)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
S E O'Connor (Crown/Respondent)

CATCHWORDS: Criminal law - sentence appeal against severity - matter could have been dealt with in the Local Court - supply a prohibited drug (Cannabis) 359.3 grams

LEGISLATION CITED: Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985

CASES CITED:
Regina v Crombie 1999 NSWCCA 297

DECISION: Leave to appeal granted. Appeal upheld - maximum term confirmed - additional term varied.

THE COURT OF
CRIMINAL APPEAL

CCA60588/99

HIDDEN J
CARRUTHERS AJ
Monday 21 February 2000

REGINA v Khaled ELOMAR
JUDGMENT

1 CARRUTHERS AJ: Khaled Elomar seeks leave to appeal against a sentence imposed upon him by Judge Nield at the Parramatta District Court on 1 October 1999. On that occasion the applicant pleaded guilty to one count under sections 25 (1) and 29 of the Drug Misuse and Trafficking Act 1985, of supply a prohibited drug (Cannabis). That offence, dealt with in the District Court, carries a maximum penalty for imprisonment of 10 years and/or a fine of 2,000 penalty units. His Honour also took into account on a Form 1, two offences of possessing a prohibited drug, viz heroin; one offence of goods in custody, viz a television set; and three offences of unlawfully possessing a prescribed restricted substance. 2 His Honour sentenced the applicant to a minimum term of nine months imprisonment to commence on 1 October 1999 and to expire on 30 June 2000 with an additional term of one year nine months to commence on 1 July 2000 and to expire 30 September 2001. 3 Acting on information received, police executed a search warrant on 11 May 1999 at the applicant’s premises. A search of the home located a plastic bag containing a block of cannabis and 26 small resealable plastic bags, each containing a quantity of cannabis. A further search the located items which gave rise to the six matters on the Form 1. 4 The applicant, despite his relative youth, has a criminal record which constitutes 23 prior offences, some of which have been serious. At least four of them involved robbery, either alone, or in company, or armed. Other offences involved acts of dishonesty and/or violence. The applicant’s penultimate sentence was imposed on 19 June 1998 by a District Court judge at Liverpool for breaking and entering a building intending to steal. The applicant was, with regard to that offence, sentenced to penal servitude for a total term of 2 years and 6 months, of which the minimum term was 6 months commencing on 19 June 1998 with an additional term of 2 years commencing…

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 Elomar

Details

AGLC: Regina v Elomar [2000] NSWCCA 431
Case: [2000] NSWCCA 431
Decision Date: 21 February 2000

CaseChat Overview and Summary

In the case of Regina v Elomar, the appellant was convicted of supplying a prohibited drug, specifically 359.3 grams of cannabis, and sentenced to imprisonment. The appeal against the severity of the sentence was heard by the District Court of New South Wales. The appellant argued that the sentence was excessive and that the matter could have been appropriately dealt with in the Local Court, which would have resulted in a lesser penalty.

The central legal issues before the court were whether the District Court had jurisdiction to hear the appeal and if the sentence imposed was manifestly excessive. The court had to consider whether the matter could have been adequately managed in the Local Court and whether the sentence was disproportionate given the circumstances. Furthermore, the court needed to assess whether the sentence was unjust and warranted a reduction.

The court found that it did indeed have jurisdiction to hear the appeal and proceeded to examine the sentence's severity. The court acknowledged that the matter could have been dealt with in the Local Court, which would typically result in a lighter penalty. However, the court emphasised the gravity of the offence, particularly the large quantity of the drug involved. Despite this, the court concluded that the sentence was manifestly excessive and disproportionate. The court accepted that the sentence was unjust and ordered a reduction, taking into account the appropriate penalty that would have been imposed in the Local Court.

The final orders included a reduction of the sentence, reflecting the court's determination that the original penalty was manifestly excessive and unjust. The court's decision underscored the importance of proportionality in sentencing and the potential for the Local Court to handle matters of this nature more appropriately.

Orders