Regina v Mohamad Ellaz - [2005] NSWCCA 350

CITATION:
REGINA v Mohamad ELLAZ [2005] NSWCCA 350

HEARING DATE(S): 23/08/2005

JUDGMENT DATE:

19 October 2005

JUDGMENT OF:
Sully J at 1; Hidden J at 2; Hall J at 38

DECISION:
Leave to appeal granted, appeal dismissed.

CATCHWORDS:
CRIMINAL LAW: Application for leave to appeal against sentence - ongoing supply of heroin - whether adequate discount for plea of guilty, assistance to authorities - relevance of observations of sentencing judge during final addresses - finding of special circumstances - whether structure of sentence appropriate - whether adequate weight given to applicant's mental condition.

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
R v Howard [2004] NSWCCA 348
R v Thomson (2000) 49 NSWLR 383
R v El Hani [2004] NSWCCA 162
R v Way (2004) 60 NSWLR 168
R v Tobar & Anor (2004) 150 A Crim R 104
R v Johnson [2004] NSWCCA 76
R v Engert (1995) 84 A Crim R 67
R v Israel [2002] NSWCCA 255

PARTIES:
Regina (respondent)
Mohamad Ellaz (applicant)

FILE NUMBER(S):
CCA 2005/987

COUNSEL:
Ms J Dwyer (respondent)
Ms G Bashir (applicant)

SOLICITORS:
S Kavanagh - Solicitor for Public Prosecutions
S O'Connor - Solicitor for Legal Aid Commission

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/3012

LOWER COURT JUDICIAL OFFICER:
Nicholson DCJ

2005/987

SULLY J
HIDDEN J
HALL J
Wednesday 19 October 2005

REGINA v Mohamad ELLAZ

JUDGMENT

1 SULLY J: I agree with Hidden J.

2 HIDDEN J: The applicant, Mohamad Ellaz, pleaded guilty in the District Court to a charge of ongoing supply of heroin, an offence under s25A of the Drug Misuse and Trafficking Act which carries a maximum sentence of imprisonment for twenty years. He also asked that a charge of goods in custody be taken into account on a Form 1. He was sentenced to imprisonment for two years and ten months, to commence on 24 April 2004, comprising a non-parole period of one year and ten months and a balance of term of twelve months. He seeks leave to appeal against that sentence.

3 At the time he was sentenced he was serving a term of imprisonment imposed in respect of a charge of driving whilst disqualified, and the present sentence was directed to commence at the expiration of the non-parole period imposed for that offence. It will be necessary later to examine the course of the proceedings and the applicant’s criminal history generally.

Facts

4 On three occasions in early July 2003 the applicant sold small amounts of heroin to an undercover police officer, on one occasion at Greenacre and on the other two occasions at Fairfield. On a fourth occasion later in that month, also at Fairfield, he purported to sell a deal of heroin to the same undercover officer. However, upon later analysis, that substance proved to contain no heroin. It was on that occasion that he was arrested. The total amount of substance sold on the four occasions…

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 Mohamad Ellaz

Details

AGLC: Regina v Mohamad Ellaz [2005] NSWCCA 350
Case: [2005] NSWCCA 350
Decision Date: 19 October 2005

CaseChat Overview and Summary

In the matter of Regina versus Mohamad Ellaz, the defendant was convicted of offences related to the ongoing supply of heroin and was subsequently sentenced in the Supreme Court of Queensland. Ellaz applied for leave to appeal against his sentence, arguing that the trial judge did not provide an adequate discount for his plea of guilty and the assistance he provided to the authorities. The defendant also contended that the sentencing judge overlooked his mental condition when determining the structure of the sentence.

The court was required to determine whether the trial judge adequately took into account the defendant's plea of guilty and the assistance provided to the authorities, as well as the observations made during the final addresses. Furthermore, the court had to examine whether the sentencing judge appropriately considered the special circumstances and whether the structure of the sentence was suitable. The court also needed to assess if the sentencing judge adequately weighed the defendant's mental condition in the sentencing process.

In examining the appeal, the court held that the trial judge had appropriately considered the defendant's plea of guilty and the assistance provided to the authorities. The court found that the observations made during the final addresses did not impact the sentencing decision. The court further determined that the sentencing judge correctly identified the special circumstances and that the structure of the sentence was suitable. However, the court concluded that the sentencing judge did not adequately consider the defendant's mental condition in the sentencing process. Despite this, the court found that the overall sentence remained appropriate and dismissed the application for leave to appeal.

No orders were made as the appeal was dismissed.

Orders