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 on 19 December 1998. The applicant was in fact admitted to parole on 19 December 1998 and the subject offence was committed on 11 May 1999, which was less than six months after the applicant was admitted to parole. Judge Nield noted that the commission of the subject offence whilst on parole was an aggravating feature. It indicates, his Honour commented, that the applicant was not prepared to change his criminal ways or his drug use ways. 5 It was submitted on behalf of the applicant that the sentence imposed was manifestly excessive having regard to the fact that the offence could have been dealt with summarily, had the prosecution not elected otherwise; the relatively small amount of cannabis involved; the plea of guilty; the recent attempts by the applicant to rehabilitate himself. 6 The effect of section 33 C(1) of Pt 9A of the Criminal Procedure Act 1986 is that the matter could indeed have been dealt with summarily by a Local Court unless the prosecuting authority or the applicant had not elected to have the offence dealt with on indictment. The prosecuting authority did in fact elect to have it dealt with on indictment. The amount of drug involved, 359.3 grams, was slightly more than the traffickable quantity(300 grams) but less than the indictable quantity (1000 grams). 7 I have already referred to the maximum penalty for the subject offence when dealt with on indictment. The penalty for such an offence, where the amount of the drug is not more than the indictable quantity, if dealt with summarily, is a fine of 100 penalty units and/or imprisonment for two years. 8 This Court has acknowledged that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, is a relevant consideration in the exercise of the discretion reserved to the sentencing Judge. The cases were recently referred to in Regina v Crombie. (1999) NSWCCA 297 para 15. However, as this Court pointed out in Crombie, none of those decisions goes so far as to require the sentencing judge in the District Court to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that it is a circumstance to be taken into account by the judge in the exercise of his or her discretion. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence which would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Moreover, where it appears that such a factor has been entirely overlooked by the sentencing judge, it may justify the granting of leave to appeal. 9   The degree of relevance, however, of the maximum penalty which the offence would have attracted in the Local Court depends, of course, upon the circumstances. 10   In the instant case, the submissions of the legal representatives before the sentencing Judge have not been transcribed. It is not possible for this Court, therefore, to determine whether or not reference was made by the legal representatives to the maximum penalty in the Local Court, and if so, the extent of the reliance (if any) which the applicant’s legal representative may have sought to place upon such a circumstance. His Honour did not in his recorded remarks on sentence specifically refer to the maximum penalty in the Local Court. I must say I find it difficult to conclude that such an experienced sentencing Judge would have overlooked the matter, whether it was raised by those appearing before him or not. However, be that as it may, there is no reference in the remarks on sentence to this particular circumstance. 11   I would add that bearing in mind the antecedent criminal history of the applicant, together with the fact he was on parole at the time of the offence, I am persuaded that it was perfectly proper for the Crown to elect to proceed against the applicant in the District Court. However, taking into account that the applicant is entitled to seek to rely upon the fact that his Honour made no reference to the Local Court maximum, and the fact that a relatively small amount of the drug in question was located at the applicant's residence together with the fact that the applicant frankly admitted before the sentencing Judge, (contrary to what he had said to the interviewing police), that he proposed to sell some of the cannabis, a case had been made out for the intervention of this Court. 12   Bearing in mind the prior criminal record of the applicant, the fact that he was on parole at the relevant time and, balancing the objective and subjective circumstances, I am not persuaded that this Court should interfere with the minimum term of 9 months. I am persuaded however, not without some hesitation, that this Court should reduce the overall sentence as reflected in the additional term. I would propose, therefore, that the minimum term of 9 months imprisonment commencing on 1 October 1999 and expiring 30 June 2000 be confirmed and the additional term be varied so that in lieu of one year and nine months, the applicant be sentenced to an additional term of one year three months imprisonment to commence 1 July 2000 and to expire 30 September 2001. 13   Leave to appeal should therefore be granted and the appeal upheld to the extent which I have indicated. 14   HIDDEN J: I agree an overall sentence of two years in the present case is justified. Notwithstanding the relatively small amount of the drug involved, in the light of the applicant’s criminal history and the fact he was on parole at the time of the offence, the orders of the Court will be those by Carruthers J.