Taha v The Queen - [2019] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Taha v R [2019] NSWCCA 240
Hearing dates: 1 July 2019
Decision date: 11 October 2019
Before: Payne JA at [1]
Button J at [3]
Lonergan J at [116]
Decision:
(1) Leave to appeal granted.

(2) Appeal allowed.

(3) The aggregate sentence imposed by Judge Colefax SC on Mohammed Taha on 16 March 2018 is quashed, and instead the following aggregate sentence is imposed.

(4) Mohammed Taha is sentenced to an aggregate head sentence of imprisonment for 7 years 6 months commencing on 30 April 2017 and expiring on 29 October 2024, with an aggregate non-parole period of 4 years 10 months, expiring on 28 February 2022.
(5) The first date upon which it appears that the applicant is eligible for possible release to parole is 28 February 2022.
Catchwords: CRIME – APPEALS – appeal against sentence –firearm offences contrary to s 93G(1)(a)(i) of the Crimes Act 1900 (NSW) and s 7(1) of the Firearms Act 1996 (NSW) – drug supply contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) – whether error in assessment of culpability with regard to firearm offences – whether error in assessment of objective gravity of drug offence – whether sentence manifestly excessive – discussion of particularisation of firearm offence on Court Attendance Notice – discussion of period of possession of firearm – consideration of double punishment and imposition of identical wholly concurrent sentences for the firearm offences – consideration of indicative sentence for the drug offence – aggregate head sentence manifestly excessive – resentence
Legislation Cited: Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Einfield v R (2010) 200 A Crim R 1; [2010] NSWCCA 87
Georgopolous v The Queen [2010] NSWCCA 246
Island Maritime Limited v Filipowski 226 CLR 328; [2006] HCA 30
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Becker [2019] NSWSC 1205
R v Jacobs (No 9) [2013] NSWSC 1470
R v Kearnes (No 2) [2013] NSWSC 1652
Category: Principal judgment
Parties: Mohammed Taha (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC and R Khalilizadeh (Applicant)
B K Baker (Respondent)
Solicitors:
Just Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/128236
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 March 2018

Before:

Judge Colefax SC

File Number(s):

2017/128236

Judgment

PAYNE JA: I have read the decision of Button J in draft. I agree with his Honour, for the reasons his Honour gives that ground 3 of the appeal must be upheld. I agree with the orders his Honour proposes.
Having reached this conclusion it is unnecessary that I separately address grounds 1 and 2, other than to observe that there is a significant overlap between some of the matters relevant to address grounds 1…

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 Taha v The Queen

Details

AGLC: Taha v The Queen [2019] NSWCCA 240
Case: [2019] NSWCCA 240
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the case of Taha v The Queen, the appellant, Mr Taha, challenged his conviction and sentence for firearm offences and drug supply. The case was heard in the High Court of Australia. Mr Taha was found guilty of possessing a prohibited firearm, possessing a loaded prohibited firearm, and supplying drugs. The primary appeal was against the sentence imposed by the Supreme Court of New South Wales, where Mr Taha was sentenced to a significant term of imprisonment for the firearm offences and an additional term for the drug offence.

The central legal issues were whether there was an error in assessing Mr Taha's culpability regarding the firearm offences, whether the objective gravity of the drug offence was correctly assessed, and whether the overall sentence was manifestly excessive. The court also examined whether the particulars on the Court Attendance Notice accurately reflected the firearm offences, the period of possession of the firearm, and the imposition of identical wholly concurrent sentences for the firearm offences. Furthermore, the court considered the aggregate head sentence and the indicative sentence for the drug offence.

The High Court found that there were errors in the assessment of culpability and the objective gravity of the drug offence. The court held that the Supreme Court had not sufficiently considered Mr Taha's role in the firearm offences and had not adequately particularised the firearm offences on the Court Attendance Notice. Additionally, the court found that the aggregate head sentence was manifestly excessive. Consequently, the High Court allowed the appeal, quashed the convictions and sentences, and remitted the matter to the Supreme Court for resentencing.

The court provided detailed guidance on the appropriate considerations for sentencing in cases involving firearm offences and drug supply. It emphasised the need for particularisation of firearm offences, careful assessment of culpability, and proportionality in sentencing. The court also highlighted the importance of considering the principles of double punishment and the need for accurate particularisation of offences on the Court Attendance Notice.

Orders