El-Ahmad v R [2015] NSWCCA 65

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: El-Ahmad v R [2015] NSWCCA 65 Hearing dates: 8 April 2015 Decision date: 16 April 2015 Before: Beazley P at [1]; R A Hulme J at [2]; Adamson J at [80] Decision: 1. Leave to appeal against sentence granted and appeal allowed. 2. Sentence imposed in the District Court on 2 May 2014 quashed. 3. Sentence the applicant to an aggregate term of imprisonment comprising a non-parole period of 2 years 2 months and a balance of the term of the sentence of 1 year 10 months. The sentence is to date from 9 April 2013. The non-parole period will expire on 8 June 2015 and the total term will expire on 8 April 2017. Catchwords: CRIMINAL LAW – appeals – appeal against sentence – offence of commercial supply – offence of ongoing supply – where applicant has lengthy criminal record - Crohn's disease - history of drug induced psychosis – objective seriousness assessed at below mid-range – error established in assessment of objective seriousness – no error in assessment of subjective features - finding of special circumstances – insufficient reduction of non-parole period - sentencing discretion miscarried – where justifiable sense of grievance given sentence imposed on co-offender – lesser sentence warranted – leave granted – appeal allowed CRIMINAL LAW – appeals – appeal against sentence – discount for guilty plea – where plea entered on day of trial – 25 per cent discount permitted only in exceptional circumstances – discount of 15 per cent allowed on re-sentence Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: House v The King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37 MD v R [2015] NSWCCA 37 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Giang [2005] NSWCCA 387 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Pan [2005] NSWCCA 114 R v Sutton [2004] NSWCCA 225 Category: Principal judgment Parties: Mouna El-Ahmad (Applicant) Regina (Respondent) Representation: Counsel: Mr W Hunt (Applicant) Ms J Girdham SC (Crown)