Nader v R [2018] NSWCCA 256

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nader v R [2018] NSWCCA 256 Hearing dates: 24 October 2018 Date of orders: 14 November 2018 Decision date: 14 November 2018 Before: Hoeben CJ at CL at [1] Davies J at [2] Button J at [80] Decision: (1) Leave to appeal against conviction allowed. (2) Dismiss the conviction appeal. (3) Leave to appeal against sentence allowed. (4) Allow the appeal against sentence. (5) Quash the sentence imposed by Judge Craigie SC in the District Court on 24 November 2017. (6) In lieu, sentence the appellant to a term of imprisonment of nine years and six months commencing 8 May 2017 and expiring 7 November 2026 with a non-parole period of five years and nine months expiring 7 February 2023. Catchwords: CRIME – appeal against conviction – offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug – whether conduct of defence of co-accused caused unfairness to applicant – where co-accused pleaded guilty to another offence to engender reasonable doubt that he had the requisite mental state – where applicant did not apply for a separate trial – purported miscarriage of justice resulting from course deliberately chosen on the basis that it could result in a forensic advantage – where no ground of appeal alleging incompetency of counsel - appeal against sentence – commencement of sentence – pre-sentence custody period not taken into account – sentence backdated Legislation Cited: Crimes Act 1914 (Cth) s 16E Crimes (Sentencing Procedure) Act 1999 (NSW) s 24 Cases Cited: De Jesus v The Queen (1986) 22 A Crim R 375 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Madubuko, Henry Ugo v R [2011] NSWCCA 135 Phillips v R [2016] NSWCCA 159 R v Guldur (1986) 8 NSWLR 12 R v Middis & Ors (27 March 1991, NSW Supreme Court, Hunt J – Unrep) R v Pham [2004] NSWCCA 190 Refaieh v R [2018] NSWCCA 72 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Webb v R (1994) 181 CLR 41 Texts Cited: Nil Category: Principal judgment Parties: Moses Nader (Applicant) Crown (Respondent) Representation: Counsel: F Coyne & W Tuckey (Applicant) J Single & M Kalyk (Respondent)