Younan v The Queen - [2012] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Younan v R [2012] NSWCCA 155
Hearing dates: 10 July 2012
Decision date: 18 July 2012
Before: Hoeben JA
Latham J
Garling J
Decision:
Leave to appeal allowed
Appeal dismissed

Catchwords: CRIMINAL LAW - appeal against sentence - importing a marketable quantity of heroin s 307.2 (1) of the Criminal Code (Cth) - whether trial judge erred in application of Ellis discount - whether trial judge erred in failing to find applicant was remorseful - whether sentence was manifestly excessive -- undue weight was not placed on general deterrence - no scope for finding remorse after conviction at trial - sentence imposed was at the very bottom of the range - appeal dismissed
Legislation Cited: Crimes Act (Cth) 1990
Cases Cited: R v Ellis (1986) 6 NSWLR 603
R v Borkowski [2009] NSWCCA 102
Raad v R [2011] NSWCCA 138
R v Rushby [1977] 1 NSWLR 594
Category: Principal judgment
Parties: Aram Younan - Applicant
Regina - Respondent
Representation: Counsel
M Smith - Applicant
CP O'Donnell - Respondent
Solicitors
CrimLaw (NSW) Pty Ltd - Applicant
Commonwealth Director of Public Prosecutions - Respondent

File Number(s): 2009/58589
Decision under appeal

Date of Decision:

2010-11-17 00:00:00

Before:

Flannery SC DCJ

File Number(s):

2009/0058589004

Judgment

HOEBEN JA : I agree with Latham J.

LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Flannery SC DCJ on 17 November 2010 in respect of two counts of importing a marketable quantity of heroin, pursuant to s 307.2 (1) of the Criminal Code (Cth). The offence carries a maximum penalty of 25 years imprisonment.

The applicant was convicted after trial. On the first count, her Honour imposed a term of 5 years and 9 months imprisonment. On the second count her Honour imposed a term of 6 years and 2 months imprisonment. The sentence on count two was accumulated on the sentence for count one to the extent of 3 months, resulting in an aggregate sentence of 7 years and 5 months. Her Honour set an aggregate non parole period of 4 years and 6 months.

The applicant alleges error in the manner in which her Honour dealt with the application of what has come to be known as the Ellis discount (R v Ellis (1986) 6 NSWLR 603). Further, the applicant alleges error in her Honour's failure to find that the applicant was remorseful. Finally, the applicant complains that the sentence is manifestly excessive and that a lesser sentence is warranted in law.

The circumstances of the applicant's offending fall within a short compass. The applicant travelled to Thailand on two occasions at the request of a co-offender, Sam Isaac, in January and March of 2009. On the first occasion, the applicant returned to Sydney, wearing a pair of shoes that were provided to him in Thailand and which concealed 537 g of pure heroin.

On the second occasion, the applicant aided and abetted the importation by…

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 Younan v The Queen

Details

AGLC: Younan v The Queen [2012] NSWCCA 155
Case: [2012] NSWCCA 155
Decision Date: 18 July 2012

CaseChat Overview and Summary

The case of Younan v The Queen involves an appeal against sentence following a conviction for importing a marketable quantity of heroin, in breach of section 307.2(1) of the Criminal Code (Cth). The appellant, Younan, challenged the sentence imposed by the trial judge on several grounds, including the application of the Ellis discount, the failure to find that Younan was remorseful, and the argument that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia.

The central legal issues the court needed to address were whether the trial judge had erred in applying the Ellis discount, whether the judge had erred in failing to find that Younan was remorseful, and whether the sentence imposed was manifestly excessive. Additionally, the court needed to determine if undue weight was placed on general deterrence and whether there was scope for finding remorse after the conviction at trial. The court also examined if the sentence imposed was at the very bottom of the range prescribed by law.

The court found that the trial judge did not err in applying the Ellis discount as it was appropriately applied in the circumstances. The court held that there was no scope for finding remorse after the conviction at trial, as the appellant had not expressed any remorse during the trial. Furthermore, the court determined that the sentence imposed was at the very bottom of the range prescribed by law and that undue weight was not placed on general deterrence. Given these findings, the appeal was dismissed.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the trial judge. The court upheld the sentence as being within the appropriate range and appropriate in light of the circumstances of the case.

Orders