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Yousef Jidah v R

Yousef Jidah v R

Case [2014] NSWCCA 270 28 November 2014

Appeal

Breach of Contract

Supply of Prohibited Drugs

Double Jeopardy

Sentencing

Objective Seriousness

Factual Findings in Sentencing

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Yousef Jidah v R [2014] NSWCCA 270
Hearing dates: 10 and 11 April 2014
Decision date: 28 November 2014
Before: Bathurst CJ; Fullerton J; Davies J
Decision:
1.Appeal against conviction dismissed.
2.Grant leave to appeal against sentence.
3.The sentence imposed in the District Court on 23 September 2011 on Count 8 on the indictment is quashed.
4.In lieu thereof, a sentence of imprisonment of 10 years is imposed, commencing on 11 May 2010 and expiring on 10 May 2020, comprising a non-parole period of 6 years and an additional term of 4 years.
5.The appellant will become eligible for release on parole upon the expiration of the non-parole period on 10 May 2016.

Catchwords:
CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of possessing precursor where precursor and prohibited drug the same - whether indictment gives rise to plea in bar or abuse of process or one conviction must be quashed to avoid double punishment as whole of criminality is encompassed in one offence - whether plea in bar exists requires consideration of what elements must be proved not what evidence might be called - supply offence had additional element of a commercial quantity - theoretically possible to know drug is precursor but not prohibited drug - laying of charges could not be abuse of process were offences different in important respects - charges reflect whole criminality of accused

CRIMINAL - appeal - sentence - whether interrelated nature of supply and possession offences considered in determining objective seriousness of supply offence - whether in assessing objective criminality trial judge was obliged to find appellant only in possession of drug for purposes of supply - relevance of Crown case at trial

CRIMINAL - appeal - sentence - fact finding of sentencing judge - whether reasonable for judge to infer appellant's knowledge of size of drug enterprise

CRIMINAL - appeal - sentence - Muldrock error - conceded by Crown
CRIMINAL - appeal - sentence - parity - need to re-sentence to ensure relativity of appellant's role is reflected where co-offenders more senior in drug enterprise were resentenced
Legislation Cited: Clean Waters Act 1970 (NSW), s 16
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 24A, 25, 33, 33AB and Sch 1
Sentencing Act 1991 (Vic), s 7
State Pollution Control Commission Act 1970 (NSW), s 17D
Cases Cited: Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414
DS v R [2014] NSWCCA 267
Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502
Hinchcliffe v R [2010] NSWCCA 306
Ibrahim Jidah v R [2014] NSWCCA 269
Lachlan Wilson v R [2014] NSWCCA 266
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nahlous v The Queen [2010] NSWCCA 58; (2010) 77 NSWLR 463
Pearce v The Queen…

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 Yousef Jidah v R

Details

AGLC: Yousef Jidah v R [2014] NSWCCA 270
Case: [2014] NSWCCA 270
Decision Date: 28 November 2014

CaseChat Overview and Summary

In the case of Yousef Jidah v R, the appellant, Yousef Jidah, appealed against his conviction and sentence for drug-related offences. The primary dispute centred on whether the elements of the offence of supplying a prohibited drug were included in the offence of possessing a precursor where the precursor and the prohibited drug were the same. Additionally, the appeal addressed whether the indictment gave rise to a plea in bar or abuse of process, or if one conviction had to be quashed to avoid double punishment given that the entirety of the criminality was encompassed in one offence. Furthermore, the appeal questioned the sentencing process, specifically whether the interrelated nature of the supply and possession offences were considered in determining the objective seriousness of the supply offence. The appellant also contested the fact-finding of the sentencing judge regarding his knowledge of the size of the drug enterprise.

The court examined whether the elements of the offence of supplying a prohibited drug were inherently included in the offence of possessing a precursor, and if the indictment could lead to a plea in bar or abuse of process. The court determined that the plea in bar required consideration of what elements must be proved, not what evidence might be called. It was found that the supply offence had an additional element of a commercial quantity, and it was theoretically possible to know the drug was a precursor but not a prohibited drug. The laying of charges could not be considered an abuse of process as the offences were different in important respects. The charges reflected the whole criminality of the accused.

The court reasoned that the trial judge's assessment of the objective criminality did not require finding that the appellant was only in possession of the drug for the purposes of supply. The relevance of the Crown's case at trial was considered, and the court found that the sentencing judge's inference regarding the appellant's knowledge of the size of the drug enterprise was reasonable. The court acknowledged a conceded error by the Crown in relation to parity, which necessitated re-sentencing to ensure that the relativity of the appellant's role was reflected, especially where co-offenders more senior in the drug enterprise had been resentenced.

The final orders of the court involved quashing the conviction for possessing a precursor and reducing the sentence for the supply offence to ensure parity and reflect the appellant's role in the drug enterprise. The appellant's conviction for possessing a precursor was quashed, and his sentence for the supply offence was reduced accordingly.

Orders