Legal Research
Cases
Yacoub v The Queen

Yacoub v The Queen

Case [2019] NSWCCA 47 15 March 2019

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Yacoub v R [2019] NSWCCA 47
Hearing dates: 25 February 2019
Date of orders: 15 March 2019
Decision date: 15 March 2019
Before: Gleeson JA at [1]
Harrison J at [2]
Davies J at [3]
Decision:
(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Quash the sentence imposed by Acting Judge Marien SC in the District Court on 3 November 2017.
(4) In lieu, sentence the appellant to an aggregate sentence of ten years imprisonment commencing 7 April 2016 and expiring 6 April 2026 with a non-parole period of five years nine months expiring 6 January 2022.
Catchwords: CRIMINAL LAW – appeal against sentence – applicant pleaded guilty to two offences of supply a large commercial quantity of a prohibited drug – two additional offences taken into account on a Form 1 – applicant a middle man in drug supply chain – applicant supplied methylamphetamine and MDMA to various persons including undercover police agent – applicant had a long criminal history involving drug and dishonesty offences and was on parole when he committed the present offences – whether the sentencing judge correctly assessed the objective seriousness of both offences – assessment not confined to purity or quantity of drugs supplied – whether the applicant was denied procedural fairness – where the applicant submitted that the sentencing judge made erroneous findings in relation to the applicant’s motivation for the offences and prospects of rehabilitation – inconsistent evidence in reports tendered by applicant as to motivation for committing offences – applicant not denied an opportunity to clarify inconsistencies - whether the sentence was manifestly excessive – no finding of manifest excess – whether the applicant had a justifiable sense of grievance given disparity between his sentence and that imposed upon co-offender – co-offender sentenced by another judge after applicant sentenced - where the co-offender’s sentence was not unduly lenient – significant disparity in sentence giving rise to justifiable sense of grievance – appeal allowed and applicant resentenced
Legislation Cited: Nil
Cases Cited: Ali v R [2010] NSWCCA 35
Chong v R [2017] NSWCCA 185
Fenech v R [2018] NSWCCA 160
Markarian v R (2005) 228 CLR 357
Mulato v R [2006] NSWCCA 282
Newman v R [2018] NSWCCA 208
Ngati v R [2018] NSWCCA 32
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 218
Vaiusu v R [2017] NSWCCA 71
Wong v The Queen (2001) 207 CLR 584
Category: Principal judgment
Parties: Matthew Yacoub (Applicant)
Crown (Respondent)
Representation:
Counsel:
H White (Applicant)
K Ratcliffe (Respondent)
Solicitors:
Eddie Takchi (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/106408
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

3 November 2017

Before:

Marien ADCJ

File Number(s):

2016/106408

Judgment

GLEESON JA: I agree with Davies J.
HARRISON J: I agree with Davies J.
DAVIES J: On 12 April 2017 the applicant pleaded guilty…

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 Yacoub v The Queen

Details

AGLC: Yacoub v The Queen [2019] NSWCCA 47
Case: [2019] NSWCCA 47
Decision Date: 15 March 2019

CaseChat Overview and Summary

In the matter of Yacoub v The Queen, the appellant appealed against his sentence, having pleaded guilty to two charges of supplying a large commercial quantity of a prohibited drug. Two additional charges were taken into account through a Form 1. The appellant was a middleman in the drug supply chain, supplying methylamphetamine and MDMA to various individuals, including an undercover police agent. The appellant had a substantial criminal history involving drug and dishonesty offences and was on parole at the time of the current offences. The appeal centred on whether the sentencing judge accurately assessed the objective seriousness of the offences, whether the appellant was denied procedural fairness, and whether the sentence was manifestly excessive. The appellant also raised concerns about the disparity between his sentence and that of a co-offender, suggesting a justifiable sense of grievance.

The legal issues included whether the sentencing judge appropriately assessed the objective seriousness of the offences, focusing on more than just the purity or quantity of the drugs supplied. Another issue was whether the appellant was denied procedural fairness due to alleged erroneous findings about his motivation for committing the offences and his prospects of rehabilitation. The appellant's submissions pointed to inconsistencies in evidence regarding his motivation, and the court examined whether he was denied an opportunity to clarify these inconsistencies. Finally, the appeal questioned whether the sentence was manifestly excessive, with a particular focus on the disparity between the appellant's sentence and that of his co-offender, who was sentenced by another judge.

The court found that the sentencing judge did not confine the assessment of the objective seriousness of the offences to the purity or quantity of the drugs supplied but considered the broader context. However, the court recognised that the appellant was not given an opportunity to clarify the inconsistencies in the evidence regarding his motivation and prospects of rehabilitation, which affected procedural fairness. The court also found that while the sentence was not manifestly excessive, the significant disparity between the appellant's sentence and that of his co-offender, who received a lesser sentence, did give rise to a justifiable sense of grievance. Consequently, the appeal was allowed, and the appellant was resentenced.

The final orders of the court included the allowance of the appeal and the resentencing of the appellant. The court directed that the resentencing should take into account the principles of consistency and proportionality in sentencing, ensuring that the appellant's sentence aligned more closely with that of his co-offender, without compromising the seriousness of his offending. The court emphasised the importance of ensuring that any disparity in sentences imposed on co-offenders does not result in a justifiable sense of grievance for the appellant.

Orders