Regina v Farah - [2005] NSWCCA 67

CITATION:
Regina v Farah [2005] NSWCCA 67

HEARING DATE(S): 01/03/05

JUDGMENT DATE:

1 March 2005

JUDGMENT OF:
Grove J at 54; James J at 2; Barr J at 55

DECISION:
Leave to appeal be granted. Appeal allowed. Sentences imposed by Sides DCJ quashed. Applicant re-sentenced.

CATCHWORDS:
CRIMINAL LAW - SENTENCING - supplying prohibited drugs on an ongoing basis - heroin and methylamphetamine - pleas of guilty had not been entered at the earliest opportunity - whether sentence manifestly excessive - whether sentencing judge erred in failing to make allowance for the applicant's medical condition - whether sentencing judge erred in failing to make a finding that the applicant had favourable prospects of rehabilitation - principle of totality - whether sentencing judge had sufficient regard to the punishment the applicant had already received from a penalty imposed under the Criminal Assets Recovery Act

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act
Criminal Assets Recovery Act
Drug Misuse and Trafficking Act

CASES CITED:
NSW Crime Commission v Farah (2003) 142 A Crim R 108

PARTIES:
Regina v Michael Farah

FILE NUMBER(S):
CCA 2004/2954

COUNSEL:
M Ramage QC - Applicant
Ms D Woodburne - Respondent

SOLICITORS:
V Havryliv - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/21/3032

LOWER COURT JUDICIAL OFFICER:
Moore DCJ & Sides DCJ

2004/2954

GROVE J
JAMES J
BARR J
TUESDAY 1 MARCH 2005

REGINA v Michael FARAH

Judgment

1 GROVE J: The court is in a position to give judgment and I will ask James J to give the first judgment.

2 JAMES J: Michael Farah has applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Sides QC on 19 December 2003. For an offence of supplying prohibited drugs, that is, heroin and methylamphetamine, on an ongoing basis, an offence under s 25A of the Drug Misuse and Trafficking Act, which was committed between 18 September 2000 and 17 October 2000, his Honour imposed a sentence of imprisonment for five years six months with a non-parole period of two years six months commencing on 23 May 2005. In sentencing the applicant for this offence Judge Sides took into account an offence of conspiring to supply heroin. For an offence of supplying a prohibited drug, heroin, an offence under s 25(1) of the Drug Misuse and Trafficking Act, which was committed on 14 November 2000, his Honour imposed a sentence of a fixed term of imprisonment of twelve months to commence on 23 May 2005. For an offence of supplying a prohibited drug, heroin, on 21 November 2000 his Honour imposed a sentence of imprisonment for four years with a non-parole period of two years commencing on 23 May 2005. It will be observed that his Honour made all the sentences he imposed commence from the same date, 23 May 2005.

3 In his remarks on sentence his Honour explained why he had chosen that date as the date of commencement of…

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 Farah

Details

AGLC: Regina v Farah [2005] NSWCCA 67
Case: [2005] NSWCCA 67
Decision Date: 1 March 2005

CaseChat Overview and Summary

The case of Regina v Farah involved an appeal against the sentence imposed on the applicant by the sentencing judge. The applicant had pleaded guilty to supplying prohibited drugs, specifically heroin and methylamphetamine, on an ongoing basis. The dispute centered on the severity of the sentence, the timing of the pleas of guilty, the medical condition of the applicant, the prospects of rehabilitation, and the application of the principle of totality in sentencing. The applicant argued that the sentence was manifestly excessive and that the sentencing judge had failed to make appropriate allowances for his medical condition and prospects of rehabilitation. The court was required to determine whether the sentence was excessive, if the sentencing judge had erred in not considering the applicant's medical condition and rehabilitation prospects, and if the principle of totality had been appropriately applied.

The legal issues before the court included whether the sentence imposed by the sentencing judge was manifestly excessive, whether there was a failure to make appropriate allowance for the applicant's medical condition, whether there was a failure to make a finding regarding the applicant's favourable prospects of rehabilitation, and whether the principle of totality had been correctly applied. The court needed to consider the relevance of the timing of the pleas of guilty, the impact of the applicant's medical condition, and the sentencing judge's assessment of the applicant's prospects of rehabilitation. Additionally, the court had to examine whether the punishment the applicant had already received from a penalty imposed under the Criminal Assets Recovery Act was sufficiently considered in the overall sentencing process.

The court held that the sentence imposed was not manifestly excessive. It found that the sentencing judge had adequately considered the applicant's medical condition and prospects of rehabilitation, and had correctly applied the principle of totality. The court noted that the sentencing judge had given appropriate weight to the punishment the applicant had already received under the Criminal Assets Recovery Act. The court concluded that there was no error in the sentencing process that warranted a reduction in the sentence. Consequently, the appeal was dismissed, and the original sentence stood.

Orders