Taybah v The King - [2024] NSWCCA 182

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Taybah v R [2024] NSWCCA 182
Hearing dates: 20 September 2024
Date of orders: 16 October 2024
Decision date: 16 October 2024
Before: Bell CJ at [1]
Davies J at [2]
Wright J at [53]
Decision:
(1) Extend time for filing the present application to 1 July 2024.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration – whether the sentencing judge failed to have regard to critical matters in the evaluation of objective seriousness – where applicant pleaded guilty to several offences of supplying a commercial quantity of prohibited drugs and knowingly dealing with the proceeds of crime – where applicant submitted that he tried to withdraw from the arrangement to possess the drugs – where applicant submitted that the sentencing judge failed to deal with the applicant’s possession of the drugs being highly reluctant – applicant accepted that he was not operating under duress – where the sentencing judge set out the facts from which the seriousness of the offending could be seen – where there was no evidence that the applicant withdrew from the arrangement – where the sentencing judge deal with submissions made on behalf of applicant – where matters raised on appeal were not put to the sentencing judge – no error demonstrated

Legislation Cited:
Crimes Act 1900 (NSW) s 193B
Drug Misuse and Trafficking Act 1985 (NSW) s 25
Poisons and Therapeutic Goods Act 1966 (NSW) s 16

Cases Cited:
R v Ferguson [2022] NSWCCA 147

Texts Cited:
Nil

Category: Principal judgment
Parties: Hassan Taybah (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Game SC & A Francis (Applicant)
B Hatfield SC (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/355362 & 2020/355384
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

25 August 2022

Before:

Huggett SC DCJ

File Number(s):

2020/355362 & 2020/355384

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Hassan Taybah, pleaded guilty in the Local Court to one count of supply of a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), three counts of supply of a commercial quantity of a prohibited drug, and two counts of knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Acts 1900 (NSW). The applicant asked the sentencing judge to take into account two offences on a Form 1 in relation to the second count of supply of a commercial quantity of a prohibited drug, being supply a prohibited drug and possess a prescribed, restricted substance (testosterone) contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW).

The applicant was sentenced to an aggregate sentence of imprisonment for 11 years commencing 15…

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 Taybah v The King

Details

AGLC: Taybah v The King [2024] NSWCCA 182
Case: [2024] NSWCCA 182
Decision Date: 16 October 2024

CaseChat Overview and Summary

In the High Court of Australia, the case of Taybah v The King was presented. The applicant, Taybah, was appealing against the sentence imposed by the lower court after he pleaded guilty to multiple charges of supplying a commercial quantity of prohibited drugs and dealing with the proceeds of crime. Taybah contended that the sentencing judge failed to consider several critical factors, including his reluctance to possess the drugs and his attempts to withdraw from the arrangement, which he argued should have mitigated the seriousness of his crimes. Taybah acknowledged that he was not coerced into participating in the drug supply, but maintained that his unwillingness to possess the drugs should have been factored into the sentencing decision.

The legal issues before the court were whether the sentencing judge erred by not considering certain aspects of the applicant's involvement in the drug supply, and whether these omissions amounted to a failure to take into account a relevant consideration. The court had to assess whether the sentencing judge's evaluation of the objective seriousness of the offending was flawed by not considering these factors and whether this constituted a significant error that warranted an appeal against the sentence. Furthermore, the court needed to determine whether the matters raised on appeal were adequately presented to the sentencing judge for consideration.

The court concluded that the sentencing judge had thoroughly outlined the facts and circumstances of the case, and there was no evidence to support Taybah's claim that he had withdrawn from the drug supply arrangement. The sentencing judge also addressed the submissions made on Taybah's behalf, and the court found that the issues raised on appeal were not presented to the sentencing judge. The court held that no significant error was demonstrated in the sentencing process, as the judge had considered the relevant factors and provided a detailed assessment of the seriousness of the offending. Consequently, the appeal against the sentence was dismissed, and the original sentence was upheld.

Orders