Yacoub v R [2019] NSWCCA 47

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Yacoub v R [2019] NSWCCA 47 Hearing dates: 25 February 2019 Date of orders: 15 March 2019 Decision date: 15 March 2019 Before: Gleeson JA at [1] Harrison J at [2] Davies J at [3] Decision: (1) Grant leave to appeal.

(2) Allow the appeal.

(3) Quash the sentence imposed by Acting Judge Marien SC in the District Court on 3 November 2017.

(4) In lieu, sentence the appellant to an aggregate sentence of ten years imprisonment commencing 7 April 2016 and expiring 6 April 2026 with a non-parole period of five years nine months expiring 6 January 2022. Catchwords: CRIMINAL LAW – appeal against sentence – applicant pleaded guilty to two offences of supply a large commercial quantity of a prohibited drug – two additional offences taken into account on a Form 1 – applicant a middle man in drug supply chain – applicant supplied methylamphetamine and MDMA to various persons including undercover police agent – applicant had a long criminal history involving drug and dishonesty offences and was on parole when he committed the present offences – whether the sentencing judge correctly assessed the objective seriousness of both offences – assessment not confined to purity or quantity of drugs supplied – whether the applicant was denied procedural fairness – where the applicant submitted that the sentencing judge made erroneous findings in relation to the applicant's motivation for the offences and prospects of rehabilitation – inconsistent evidence in reports tendered by applicant as to motivation for committing offences – applicant not denied an opportunity to clarify inconsistencies - whether the sentence was manifestly excessive – no finding of manifest excess – whether the applicant had a justifiable sense of grievance given disparity between his sentence and that imposed upon co-offender – co-offender sentenced by another judge after applicant sentenced - where the co-offender's sentence was not unduly lenient – significant disparity in sentence giving rise to justifiable sense of grievance – appeal allowed and applicant resentenced Legislation Cited: Nil Cases Cited: Ali v R [2010] NSWCCA 35 Chong v R [2017] NSWCCA 185 Fenech v R [2018] NSWCCA 160 Markarian v R (2005) 228 CLR 357 Mulato v R [2006] NSWCCA 282 Newman v R [2018] NSWCCA 208 Ngati v R [2018] NSWCCA 32 Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 218 Vaiusu v R [2017] NSWCCA 71 Wong v The Queen (2001) 207 CLR 584 Category: Principal judgment Parties: Matthew Yacoub (Applicant) Crown (Respondent) Representation: Counsel: H White (Applicant) K Ratcliffe (Respondent)