Regina v Fred Nassif - [2005] NSWCCA 38

CITATION:
Regina v Fred Nassif [2005] NSWCCA 38

HEARING DATE(S): 15/2/05

JUDGMENT DATE:

15 February 2005

JUDGMENT OF:
Grove J at 1; Bell J at 2; Buddin J at 46

DECISION:
Dismiss appeal against conviction; Grant leave to appeal against sentence; Dismiss the appeal

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

PARTIES:
Fred Nassif (Appellant)
Regina (Respondent)

FILE NUMBER(S):
CCA 2004/2661

COUNSEL:
E Wilkins (Crown)
S Kluss (Appellant)

SOLICITORS:
S Kavanagh
Ross Hill & Assoc. (Appellant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/1264

LOWER COURT JUDICIAL OFFICER:
Andrew DCJ

2004/2661

GROVE J
BELL J
BUDDIN J
Tuesday 15 February 2005

Regina v Fred NASSIF

Judgment

1 GROVE J: I will ask Bell J to give the first judgment.

2 BELL J: By notice of appeal dated 22 October 2004, Fred Nassif appealed against both conviction and sentence. He was convicted before Andrew ADCJ (the Judge) in the Sydney District Court on 5 March 2004 of an offence of attempting to receive for supply a large commercial quantity of the prohibited drug 3,4- methylenedioxymethylamphetamine, commonly known as ecstasy. The offence is provided by s 25(2) of the Drug Misuse and Trafficking Act 1985 (the DMTA). The maximum penalty for an offence involving not less than the large commercial quantity of the drug is imprisonment for life and/or a fine of five thousand penalty units: s 33(3)(a) DMTA.

3 The applicant was sentenced to a term of six years’ imprisonment to date from 9 November 2003. A non parole period of three years was specified.

4 The grounds of appeal filed with the notice of appeal contended that there had been a miscarriage of justice in that the appellant had been convicted on the basis of a plea of guilty that, in the circumstances of the case, should have been rejected. No grounds with respect to the challenge to the sentence were filed.

5 Prior to the matter coming on for hearing, the Registry was notified that the applicant did not intend to pursue the challenge to his conviction. This was confirmed on the hearing of the appeal. Counsel informed the Court that the applicant only sought to pursue his application for leave to appeal against the severity of the sentence.

6 The applicant pleaded guilty before Blanch CJDC on 3 November 2003.

7 The sentence hearing came on before the Judge on 17 and 18 February 2004. His Honour sentenced the applicant on the basis of a set of facts (Exhibit A). Those facts may be briefly summarised as follows.

8 On 16 November 2001, a container of deep freezers arrived by ship in Brisbane. On 20 November, the container was searched by Customs officers who located approximately 123.5 kg of the drug ecstasy concealed within the freezers. Officers from the Australian Federal Police substituted all but approximately 3 kg of the ecstasy with an inert substance.

9 The container was transported to premises in Concord West, being the home of Louis…

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 Fred Nassif

Details

AGLC: Regina v Fred Nassif [2005] NSWCCA 38
Case: [2005] NSWCCA 38
Decision Date: 15 February 2005

CaseChat Overview and Summary

Fred Nassif appealed against his conviction and sentence for attempting to receive a large commercial quantity of ecstasy for supply, as provided by section 25(2) of the Drug Misuse and Trafficking Act 1985. The appeal against conviction was withdrawn, leaving only the challenge to the severity of the sentence. Nassif was sentenced to six years' imprisonment with a non-parole period of three years. The appellant argued that the sentence was manifestly excessive and disproportionate compared to the sentence imposed on Louis Sukkar, who was involved in the same drug trafficking operation.

The Court considered the nature of the offence, which involved a significant quantity of ecstasy and Nassif's role in the drug trafficking operation. The Court held that the sentence was not manifestly excessive as it took into account the appellant's guilty plea, remorse, and prospects for rehabilitation. Additionally, the Court noted that the sentence imposed on Sukkar, who played a greater role in the offence, was not necessarily indicative of the appropriate sentence for Nassif. The Court found that the sentence imposed on Nassif was within the range of sound judicial discretion.

The Court dismissed the appeal against conviction and granted leave to appeal against sentence but ultimately dismissed the appeal against sentence. The Court found that the sentence was appropriate given the circumstances of the case and the objective seriousness of the offence. The Court's orders were to dismiss the appeal against conviction, grant leave to appeal against sentence, and dismiss the appeal against sentence.

Orders