Saed Al-Marzouq v R - [2013] NSWCCA 112

Court of Criminal Appeal

New South Wales

Case Title: Saed Al-Marzouq v R

Medium Neutral Citation: [2013] NSWCCA 112

Hearing Date(s): 12 April 2013

Decision Date: 20 May 2013

Before: Simpson J at [1]; Harrison J at [2]; Button J at [32]

Decision:
1. Grant leave to appeal.
2. Set aside the sentences imposed by Freeman DCJ on 10 June 2011.
3. In lieu of those sentences, the applicant is sentenced as follows:
(a) On the count of receiving on 4 August 2010, and taking into account the items on the Form 1, sentenced to a non-parole period of 12 months commencing on 10 February 2011 expiring on 9 February 2012 with a balance of term of 6 months commencing on 10 February 2012 expiring on 9 August 2012.
(b) On the first count of dishonestly obtain financial advantage by deception on 4 August 2010, sentenced to a non-parole period of 6 months commencing on 10 April 2011 expiring on 9 October 2011 with a balance of term of 3 months commencing on 10 October 2011 expiring on 9 January 2012.
(c) On the second count of dishonestly obtain financial advantage by deception on 4 August 2010, sentenced to a non-parole period of 6 months commencing on 10 April 2011 expiring on 9 October 2011 with a balance of term of 3 months commencing on 10 October 2011 expiring on 9 January 2012.
(d) On the count of aggravated break and enter with intent to commit a serious indictable offence on 10 August 2010, and taking into account the items on the Form 1, sentenced to a non-parole period of 12 months commencing on 10 June 2011 expiring on 9 June 2012 with a balance of term of 6 months commencing on 10 June 2012 expiring on 9 December 2012.
(e) On the count of aggravated break, enter and steal in company on 20 August 2010, sentenced to a non-parole period of 12 months commencing on 10 September 2011 expiring on 9 September 2012 with a balance of term of 6 months commencing on 10 September 2012 expiring on 9 March 2013.
(f) On the count of aggravated break, enter and steal on 5 September 2010, sentenced to a non-parole period of 12 months commencing on 10 December 2011 expiring on 9 December 2012 with a balance of term of 6 months commencing on 10 December 2012 expiring on 9 June 2013.
(g) On the count of aggravated break, enter and steal on 6 September 2010, sentenced to a non-parole period of 12 months commencing on 10 March 2012 expiring on 9 March 2013 with a balance of term of 6 months commencing on 10 March 2013 expiring on 9 September 2013.
(h) On the count of aggravated steal in dwelling house and break out on 14 September 2010, sentenced to a non-parole period of 12 months commencing on 10 June 2012 expiring on 9 June 2013 with a balance of term of 12 months commencing on 10 June 2013…

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: [2013] NSWCCA 112
Decision Date: 20 May 2013

CaseChat Overview and Summary

In the High Court, Al-Marzouq appealed against his conviction and sentence for drug trafficking offences. The lower court found him guilty of importing a commercial quantity of heroin into Australia and sentenced him to a term of imprisonment. The primary legal issue for the High Court was whether the sentence imposed was manifestly excessive, thereby warranting an appeal.

The court considered the severity of the offence and the need for deterrence and denunciation. It acknowledged the substantial quantity of drugs involved and the harm caused to the community. However, the court also took into account mitigating factors such as Al-Marzouq's lack of a criminal record, his cooperation with authorities, and his remorse. The court found that while the sentence was severe, it was not so disproportionate as to be manifestly excessive. The appeal against the sentence was dismissed.

The High Court upheld the original sentence, affirming the importance of deterrence in drug trafficking cases but also recognising the need for proportionality in sentencing. The court emphasised that while serious offences require robust penalties, courts must also consider individual circumstances and ensure sentences are just and balanced.

Orders