Regina v Fakhreddine Regina v Doudar - [2004] NSWCCA 354

Reported Decision:
147 A Crim R 422

New South Wales

Court of Criminal Appeal

CITATION: Regina v Fakhreddine Regina v Doudar [2004] NSWCCA 354

HEARING DATE(S): Wednesday 6 October 2004

JUDGMENT DATE:
13 October 2004

JUDGMENT OF: Spigelman CJ at 1; Grove J at 2; Smart AJ at 44

DECISION: APPEALS DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - PRINCIPALS OF HIGHLY ORGANIZED DRUG DISTRIBUTION IN SYDNEY SUBURBAN AREA - LEVEL OF CRIMINALITY - OFFENDER RECEIVING LONGER SENTENCE ON PAROLE AT THE TIME OF OFFENDING - UTILITY OF STATISTICS AND CASES SUBMITTED FOR COMPARISON - STERN SENTENCE WARRANTED - NO ERROR IN ASSESSMENT BY PRIMARY JUDGE

LEGISLATION CITED: Drug Misuse & Trafficking Act 1985

CASES CITED: R v Barakat [2004] NSWCCA 201
R v Bayeh [2000] NSWCCA 473
R v Kalache (2000) 111 A Crim R 152
R v Markarian [2003] NSWCCA 8
R v Mitchell [2002] NSWCCA 270
R v Pham [2001] NSWCCA 307

PARTIES :
Regina v Hassan Fakhreddine
Regina v Ahmad Doudar

FILE NUMBER(S): CCA 2004/1801 (60286/04); 2004/1808 (60291/04)

COUNSEL: P. Miller (Crown)
P. Byrne SC (Fakhreddine)
S. Odgers SC (Doudar)

SOLICITORS: S. Kavanagh (DPP)
Galloways (Fakhreddine)
Michael Croke & Co (Doudar)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0191; 03/11/0369

LOWER COURT
JUDICIAL OFFICER : Woods DCJ

2004/1801 (60286/04)
2004/1808 (60291/04)

SPIGELMAN CJ
GROVE J
SMART AJ
13 October 2004

REGINA v HASSAN FAKHREDDINE

REGINA v AHMAD DOUDAR

Judgment

1 SPIGELMAN CJ: I agree with Grove J.

2 GROVE J: Hassan Fakhreddine (Fakhreddine) and Ahmad Doudar (Doudar) were sentenced on 10 November 2003 by Woods DCJ following pleas of guilty to offences of supplying not less than the commercial quantity of prohibited drug (heroin) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The prescribed maximum penalty for such offence is twenty years imprisonment and/or a fine of $385,000. Doudar was also sentenced on a charge of maliciously inflicting grievous bodily harm. That offence did not relate to drug dealing activities.

3 Fakhreddine was sentenced to imprisonment for twelve years with a non parole period of eight years and seeks leave to appeal against the severity of that sentence. Doudar was sentenced to imprisonment for nine years nine months with a non parole period of six years six months on the charge of supplying heroin. On the charge of malicious wounding he was sentenced to three years nine months imprisonment with a non parole period of four months commencing at the expiry of the non parole period set in respect of the previous matter. Doudar seeks leave to appeal against the severity of the sentence in respect of the charge of supplying heroin but not in respect of the malicious wounding sentence.

4 It has been convenient to hear the appeals together as the offences in respect of which challenge to sentence is made involve the activity of the appellants in the same criminal enterprise.

5 In March 2002 a police operation was established to investigate the distribution of drugs in…

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.

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Details

Case: [2004] NSWCCA 354
Decision Date: 13 October 2004

CaseChat Overview and Summary

The appellants, Fakhreddine and Doudar, were convicted for their involvement in a highly organised drug distribution operation in the suburban areas of Sydney. Their convictions and sentences were challenged before the court, which needed to determine the appropriate level of criminality and the suitability of the sentences imposed. The primary judge had assessed the appellants' criminal conduct and sentenced them to lengthy terms of imprisonment, which they now sought to appeal.

The court was tasked with examining the appellants' roles within the drug distribution network, the seriousness of their criminal conduct, and the necessity of imposing a stern sentence to deter similar activities. The appellants argued that the sentences were excessive and that the primary judge had erred in his assessment of their criminal conduct. They submitted statistics and cases for comparison, asserting that the sentences were disproportionate. The court needed to decide whether the primary judge had correctly assessed the level of criminality and whether the sentences were appropriate.

In determining the appeal, the court found no merit in the appellants' arguments. It held that the primary judge had correctly assessed the appellants' level of criminality and the need for a stern sentence to deter highly organised drug distribution activities. The court found that the sentences imposed were neither excessive nor disproportionate, given the appellants' roles and the nature of their criminal conduct. The court found no error in the primary judge's assessment and upheld the sentences imposed.

The appeal was dismissed, and the sentences of the primary judge were affirmed. The appellants were to serve the sentences as determined by the primary judge, with no alteration in the terms of their imprisonment.

Orders