Youssef v R - [2014] NSWCCA 285

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Youssef v Regina [2014] NSWCCA 285
Hearing dates: 20 November 2014
Decision date: 28 November 2014
Before: Simpson J at [1]
Price J at [2]
McCallum J at [6]
Decision:
Leave to appeal granted; appeal allowed; sentence passed at first instance quashed and in substitution therefor applicant sentenced to a term of imprisonment with a non-parole period of 7 months commencing on 1 May 2014 and expiring on 30 November 2014 and a balance of term of 5 months expiring on 30 April 2015; parole order made.

Catchwords: CRIMINAL LAW - appeal - appeal against sentence - possession of prohibited drug for supply - whether sentencing judge erred in determining that the applicant was substantially involved in supply - whether sentencing judge erred in failing to make a finding that the applicant was unlikely to reoffend - whether sentencing judge failed to give sufficient weight to the applicant's subjective features - whether the sentence imposed was unduly harsh and severe - discretion of the Court of Criminal Appeal - principles stated in Kentwell v R
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act 1985
Cases Cited: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kentwell v R [2014] HCA 37; (2014) 313 ALR 451
R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394
R v Bardo (Supreme Court of New South Wales, Court of Criminal Appeal, 14 July 1992, unreported)
R v Peter Michael Clark (Supreme Court of New South Wales, Court of Criminal Appeal, 15 March 1990, unreported)
Category: Principal judgment
Parties: Milad Youssef (Applicant)Regina (Respondent)
Representation: Counsel:
Ramage QC (Applicant)Girdham SC (Crown)
Solicitors:
Andrew Solicitors (Applicant)Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/270259
Publication restriction: None
Decision under appeal

Date of Decision:

2014-05-01 00:00:00

Before:

King DCJ

File Number(s):

2013/270259

Judgment

SIMPSON J: I agree with McCallum J.

PRICE J: I have had the benefit of reading the draft judgment of McCallum J. I agree for the reasons expressed by her Honour that Ground 1 of the appeal should be upheld and the remaining grounds dismissed. However, I do not agree with the sentence proposed by her Honour on re-sentence.

As I am aware that Simpson J agrees with the orders proposed by McCallum J, my reasons for disagreement will be brief.

The total quantity of 29.86 grams of cocaine was almost six times the indictable quantity specified in the Drug Misuse and Trafficking Act 1985 (NSW). The sentencing Judge was entitled to find that this amount of cocaine had substantial value, was entirely inconsistent with the appellant's lifestyle and was, at least in part, to be supplied to others for a substantial benefit. This was in my opinion, a significant offence of supply and there was no alternative to a term of full time imprisonment. General deterrence remains…

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 Youssef v R

Details

AGLC: Youssef v R [2014] NSWCCA 285
Case: [2014] NSWCCA 285
Decision Date: 28 November 2014

CaseChat Overview and Summary

The case of Youssef v R involved an appellant, Youssef, who appealed against his sentence for possession of a prohibited drug with intent to supply. The appeal was heard by the Court of Criminal Appeal, which had to determine whether the sentencing judge had erred in various respects. The appeal raised several key legal issues, including whether the sentencing judge had made errors in determining the extent of Youssef's involvement in the supply of the drug, whether the judge had failed to consider the likelihood of Youssef reoffending, and whether the judge had adequately taken into account Youssef's personal circumstances in imposing the sentence. Additionally, the appeal questioned whether the sentence imposed was unduly harsh and severe.

The Court of Criminal Appeal considered the principles set out in Kentwell v R, which outline the approach to sentencing appeals. The court examined the sentencing judge's determination of Youssef's involvement in the supply of the drug, assessing whether it was supported by the evidence. The court also reviewed the sentencing judge's consideration of Youssef's prospects of rehabilitation and the weight given to his personal circumstances. The appeal highlighted the importance of ensuring that all relevant factors are properly considered and balanced in sentencing, particularly in relation to the likelihood of reoffending and the individual characteristics of the offender. Ultimately, the court found that the sentencing judge had not erred in the manner alleged by the appellant, and the sentence imposed was deemed appropriate.

In conclusion, the Court of Criminal Appeal upheld the sentence imposed by the original sentencing judge. The court found that the sentencing judge had correctly assessed the evidence and properly considered Youssef's involvement in the drug supply, his likelihood of reoffending, and his personal circumstances. The court held that the sentence was not unduly harsh or severe, given the nature of the offence and the relevant sentencing principles. Therefore, the appeal was dismissed, and the original sentence remained in place.

Orders