Khalil v R [2022] NSWCCA 36

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Khalil v R [2022] NSWCCA 36 Hearing dates: 22 September 2021 Decision date: 28 February 2022 Before: Price J at [1]; Hamill J at [5]; Ierace J at [8] Decision: (1) Leave to appeal granted; (2) Appeal allowed; (3) Quash the sentence imposed in the District Court on 9 April 2021 in respect of the second offence; (4) In lieu thereof, the applicant is sentenced to imprisonment for a period of 22 months, backdated to commence on 9 April 2021 and to expire on 8 February 2023. The applicant is to be released on 1 March 2022 upon entering into a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $1,000 to be of good behaviour for the balance of the order and to appear on sentence if called upon to do so at any time in respect of any breach within that period. Catchwords: CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to two offences concerning the illegal importation and distribution of tobacco products – Where applicant submitted that an intensive correction order was appropriate – Where sentencing judge imposed a full-time custodial sentence – Whether sentencing judge failed to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when imposing a sentence of full-time imprisonment – Whether sentencing judge failed to engage with applicant's submissions regarding appropriateness of an intensive correction order – Whether sentencing judge erred in his assessment of the objective seriousness of the offences – Whether the sentence imposed was manifestly excessive Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 17A, 20, 20AB Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 8, 66 Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) Criminal Code Act 1995 (Cth), ss 11.2, 400.3, 400.4 Customs Act 1901 (Cth), ss 233, 233BABAD Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.13 Cases Cited: Al Am Ali v R [2021] NSWCCA 281 Barakat v Director of Public Prosecutions (Cth) [2020] VSCA 185 Blanch v R [2019] NSWCCA 304 Chandab v R [2021] NSWCCA 186 Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246 Markarian v The Queen [2005] HCA 25 Mourtada v R [2021] NSWCCA 211 Mulato v Regina [2006] NSWCCA 282 Obeid v R [2017] NSWCCA 221 R v Cage [2006] NSWCCA 304 R v Fangaloka [2019] NSWCCA 173 R v Saleh [2015] NSWCCA 299 R v Zhang [2017] SASCFC 5 Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 Wany v DPP [2020] NSWCA 318 Category: Principal judgment Parties: Ali Khalil (Applicant) Regina (Respondent) Representation: Counsel: Mr P Coady (Applicant) Mr D Jordan (Crown)