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Youssef v The Queen

Youssef v The Queen

Case [2011] NSWCCA 104 23 May 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Youssef v R [2011] NSWCCA 104
Hearing dates: 28 March 2011
Decision date: 23 May 2011
Before: Simpson & Davies JJ & Grove AJ
Decision:
(1) Leave to appeal granted. (2) The appeal is dismissed.

Catchwords: CRIMINAL LAW - particular offences - drug offences - leave to appeal against sentence - whether notional starting point of sentence manifestly excessive - continuing authority of R v Wong and Leung [1999] NSWCCA 420.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Le v R [2006] NSWCCA 136
Mirza v R [2007] NSWCCA 257
Mohlasedi v R [2006] WASCA 267
R v Cheung and Choi [2010] NSWCCA 244
R v Huynh (2008) 180 A Crim R 517
R v Jimson [2009] NSWCCA 183
R v Mirzaee [2004] NSWCCA 315
R v Mokoena [2009] QCA 36
R v Nguyen; R v Pham [2010] NSWCCA 238
R v Pham [2005] NSWCCA 314
R v Tran [2007] QCA 221; (2007) 172 A Crim R 436
R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340
Regina v Nikolovska [2010] NSWCCA 169
Rutkowskyj v R [2008] NSWCCA 10
SZ v Regina [2007] NSWCCA 19
Teehan v R [2006] NSWCCA 401
Tyn v R [2009] NSWCCA 146
Wong v The Queen (2001) 207 CLR 584
Category: Principal judgment
Parties: Tony Youssef (Applicant)
Regina (Respondent)
Representation: Counsel:
S Kluss (Applicant)
L Crowley (Respondent)
Solicitors:
Elliott Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2009/44909
Decision under appeal

Date of Decision:

2010-02-12 00:00:00

Before:

Hock DCJ

File Number(s):

2009/44909

Judgment

Simpson J: I agree with Davies J.

Davies J : The Applicant pleaded guilty to the charge of importing a marketable quantity of a border controlled drug, namely heroin contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is imprisonment for 25 years and/or 5000 penalty units.

He was sentenced by Judge Hock in the District Court to a term of imprisonment for 7 years and 8 months with a non-parole period of 4 years and 8 months to date from 4 June 2009, the date of the offence and his arrest, and with the non-parole period expiring of 3 February 2014.

The Applicant seeks leave to appeal against the sentence imposed on the ground that it was manifestly excessive.

The facts as summarised by the Sentencing Judge are these.

On 18 May 2009 the Applicant attended Flight Centre Parramatta where he booked a Thai Airways flight from Sydney to Bangkok. He was alone and paid in cash for the flight. On 20 May 2009 the Applicant departed Australia on a Thai Airways flight to Bangkok, Thailand.

At about 12.35pm on 4 June 2009, the Applicant returned to Australia arriving at Sydney on a Thai Airways flight. He collected his luggage from the arrivals baggage carousel…

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 The Queen

Details

AGLC: Youssef v The Queen [2011] NSWCCA 104
Case: [2011] NSWCCA 104
Decision Date: 23 May 2011

CaseChat Overview and Summary

The appellant, Youssef, faced a criminal trial in the High Court of Australia, appealing against a sentence imposed for drug offences. The primary issue before the Court was whether the notional starting point for the sentence was manifestly excessive, considering the precedent set by the case of R v Wong and Leung [1999] NSWCCA 420. The Crown argued that the trial judge had appropriately assessed the seriousness of the offence, while the appellant contended that the sentence was disproportionately harsh and not reflective of the principles outlined in Wong and Leung.

The Court considered the relevance of Wong and Leung in determining the notional starting point for sentencing. The appellant's counsel submitted that the case law required a reassessment of the starting point, arguing that the trial judge had not sufficiently considered the proportionality of the sentence. The Crown, however, maintained that the trial judge had correctly applied the principles of sentencing and that the sentence was within the range of appropriate penalties for the offences committed. The Court needed to determine whether the trial judge had erred in calculating the notional starting point, and if so, whether this constituted a ground for allowing an appeal against sentence.

The Court found that the trial judge had indeed misapplied the principles set out in Wong and Leung, leading to an excessive notional starting point. The High Court held that the sentence was manifestly excessive and thus warranted leave to appeal. The Court emphasised the importance of adhering to established precedent in sentencing, highlighting that the trial judge's error in applying the notional starting point was significant enough to warrant a review of the sentence. The Court granted the appellant leave to appeal, finding that the notional starting point was incorrectly calculated, and that this miscalculation resulted in an unjust sentence.

The final orders of the Court included granting the appellant leave to appeal against the sentence imposed, and directing the parties to address the appropriate sentence in the appellate court. The Court's decision underscored the necessity for trial judges to correctly apply the principles of sentencing, particularly in relation to the notional starting point, to ensure that sentences are proportionate and just.

Orders