Elchiekh v R [2016] NSWCCA 225

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elchiekh v R [2016] NSWCCA 225 Hearing dates: 19 September 2016 Date of orders: 19 October 2016 Decision date: 19 October 2016 Before: Price J at [1]; Button J at [75]; Fagan J at [76] Decision: (1) Leave to appeal out of time granted. (2) Appeal dismissed. (3) In accordance with the agreement between the parties that the sentence should be backdated by a further 10 days, the applicant's sentence imposed by Mahony SC DCJ on 8 November 2013 is to be adjusted as follows: the non-parole period of 7 years 6 months is to commence on 29 December 2012 and to expire on 28 June 2020 and the balance of term of 2 years 6 months is to commence on 29 June 2020 and to expire on 28 December 2022. (4) The applicant will be eligible for release on parole on 28 June 2020. Catchwords: CRIMINAL LAW – sentence appeal – one count of supplying an amount not less than the commercial quantity of methylamphetamine – one count of supplying a prohibited drug, namely 3,4-methylenedioxy-methamphetamine – one count of supplying a prohibited drug, namely ketamine – one count of supplying a prohibited drug, namely cannabis leaf – whether the judge took into account the wrong maximum penalty when determining the appropriate sentence – whether the judge failed to give proper consideration to the seriousness of each offence – delay between commission of offences and arrest – whether the judge erred in taking into account half of the period between the commission of the offence and the applicant's arrest – re-sentence Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29 Cases Cited: Ballard v R [2011] NSWCCA 193 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Nguyen v R [2011] NSWCCA 127 Pearce v R (1998) 194 CLR 610; [1998] HCA 57 R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462 R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 R v Hathaway [2005] NSWCCA 368 R v Kay [2004] NSWCCA 130 R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 R v Shorten [2005] NSWCCA 106 R v Spiers [2008] NSWCCA 107 R v Todd [1982] 2 NSWLR 517 Sabra v R [2015] NSWCCA 38 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: Tommous Elchiekh (Applicant) Regina (Respondent) Representation: Counsel: G James QC (Applicant) B K Baker (Respondent)