R v El Helou, El Helou v R [2010] NSWCCA 111

New South Wales Court of Criminal Appeal

CITATION: R v El Helou, El Helou v R [2010] NSWCCA 111 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 April 2010

JUDGMENT DATE: 21 May 2010

JUDGMENT OF: Allsop P at 1; Grove J at 93; Hislop J at 94

1. Extend time for the filing and serving of a notice of appeal against conviction to 26 March 2010 and treat the draft notice of appeal provided to the Court on 23 March 2010 as the filing and serving of a notice of appeal on or before 26 March 2010. DECISION: 2. Dismiss the conviction appeal. 3. Allow the Crown's appeal against sentence. 4. Set aside the orders of the District Court made on 10 July 2009 and in lieu thereof the Court sentences the respondent Mr Gary El Helou to a term of imprisonment with a non-parole period of eight years commencing on 11 July 2008 and expiring on 10 July 2016 with a balance of term of four years commencing on the expiration of the non-parole period and expiring on 10 July 2020.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – appeals by Crown – whether sentence manifestly inadequate – knowingly taking part in supply of more than large commercial quantity of pseudoephedrine – objective criminality of the offence above mid-range of seriousness – failure to give sufficient weight to standard non-parole period - CRIMINAL LAW – appeal against conviction – Constitutional validity of Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – not inconsistent with Criminal Code (Cth), s 306.2 – not incompatible with exercise of Commonwealth judicial power

Constitution s 109 Crimes Act 1914 (Cth) s 29 Crimes (Appeal and Review) Act 2001 (NSW) s 68A LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A Criminal Code (Cth) s 300.4, 306.1, 306.2 Criminal Code (Qld) s 469 Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) Judiciary Act 1903 (Cth) s 788