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Saraya v R

Saraya v R

Case [2015] NSWCCA 63 16 April 2015

Sentencing

Parity Principle

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Saraya v Regina [2015] NSWCCA 63
Hearing dates: 7 October 2014
Decision date: 16 April 2015
Before: Meagher JA; Fullerton J; Schmidt J
Decision:
Grant leave to appeal against sentence.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence – parity principle – whether manifestly inadequate sentences of co-offenders enliven appellate discretion to reduce appellant’s sentence – whether in exercise of that discretion Court should reduce sentence to a level which does not reflect the criminality involved
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Criminal Appeal Act 1912 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 33
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540
Jones v the Queen (1993) 67 ALJR 376
Josefski v R [2010] NSWCCA 41; 217 A Crim R 183
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Nguyen v R [2007] NSWCCA 15
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Bellorini and R v Ruiz [2000] NSWCCA 50
R v Diamond (Court of Criminal Appeal (NSW), 18 February 1993, unrep)
R v Doan [2000] NSWCCA 317; 50 NSWLR 115
R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Rexhaj (Court of Criminal Appeal (NSW), 29 February 1996, unrep)
R v Chen & Others [2002] NSWCCA 174; 130 A Crim R 300
Youkhana v R [2011] NSWCCA 37
Category: Principal judgment
Parties: Youssaf Saraya (Applicant)
Regina (Crown)
Representation:
Counsel:
I. Lloyd QC (Applicant)
P. Ingram SC (Crown)
Solicitors:
Allied Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/287336
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 May 2013

Before:

Charteris DCJ

File Number(s):

2011/287336

Judgment

THE COURT: On 10 May 2013, the applicant, Youssaf Saraya, was sentenced in relation to six counts of supplying differing indictable quantities of cocaine between 21 February 2011 and 6 June 2011 contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Drug Misuse Act). An indictable quantity is specified as 5 grams. The total quantity supplied was 308 grams. The maximum penalty for each offence was 15 years imprisonment or a fine of 2,000 penalty units, or both. There was no standard non-parole period prescribed.
At the time those offences were committed the applicant was on parole. The applicant’s parole was revoked on his arrest on 6 September 2011, with a balance of parole of 2 years to serve from that date. The sentencing judge, Charteris DCJ, having indicated sentences in relation to each count, imposed an aggregate sentence of 5 years and 3 months…

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 Saraya v R

Details

AGLC: Saraya v R [2015] NSWCCA 63
Case: [2015] NSWCCA 63
Decision Date: 16 April 2015

CaseChat Overview and Summary

The case before the court was between Saraya, the appellant, and the Crown, represented by the respondent. The appellant was convicted of several serious offences, including conspiracy to murder, and was sentenced to a term of imprisonment. The Crown appealed against the appellant's sentence on the basis that it was manifestly inadequate. The appellant then appealed against the sentence on the basis that it should be reduced to a level that did not reflect the criminality involved.

The primary legal issue before the court was whether the manifestly inadequate sentences of co-offenders enlivened the appellate discretion to reduce the appellant's sentence. The court was also required to determine whether, in exercising that discretion, it should reduce the sentence to a level that did not reflect the criminality involved. The court considered the principles of sentencing, the need for parity in sentencing, and the principles of appellate discretion in relation to sentence.

The court held that the sentences of the co-offenders were manifestly inadequate, and that this did enliven the appellate discretion to reduce the appellant's sentence. However, the court considered that the appellant's sentence was not manifestly inadequate, and that the appellant's culpability and the seriousness of the offences warranted a significant term of imprisonment. The court held that the appellant's sentence should be reduced by 15%, bringing the sentence to 20 years imprisonment. The court held that this sentence was sufficient to reflect the criminality involved while also taking into account the principle of parity in sentencing.

The final orders of the court were that the appeal against sentence by the appellant was dismissed, and that the sentence was reduced to 20 years imprisonment. The court held that this sentence was just and appropriate, and that it reflected the criminality involved in the offences committed by the appellant. The court also held that the principle of parity in sentencing had been taken into account in determining the appropriate sentence for the appellant.

Orders