El Kheir v R [2019] NSWCCA 288

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: El Kheir v R [2019] NSWCCA 288 Hearing dates: 13 November 2019 Decision date: 09 December 2019 Before: Hoeben CJ at CL at [1]; Leeming JA at [2]; Lonergan J at [57] Decision: 1. To the extent necessary, extend the time within which to file a notice of appeal until 31 July 2019. 2. Grant leave to appeal. 3. Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – parity – two offenders manufactured large commercial quantity of methylamphetamine – applicant found guilty and sentenced on basis of manufacturing some 2.6 kg of the drug – co-offender pleaded guilty to manufacturing 12.84 kg of the drug – section 4 of Drug Misuse and Trafficking Act 1985 (NSW) provided that references to a prohibited drug included reference to any admixture containing any proportion of the drug – offenders charged on different bases but sentenced on basis that both had manufactured the same mixture from which 2.6 kg of methylamphetamine could be extracted – no error in having regard to purity of admixture – no justifiable sense of grievance by applicant when all relevant facts considered – appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33, 53A Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 24, 24A, 33 Firearms Act 1996 (NSW), ss 7, 7A Poisons Act 1952 (NSW), s 3 Poisons and Therapeutic Goods Act 1966 (NSW), s 3 Police Offences Amendment (Drugs) Act 1927 (NSW), ss 18, 19, 20 Cases Cited: Finch v R [2016] NSWCCA 133 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Lam v R; Lam v R [2015] NSWCCA 87 Lloyd v R [2017] NSWCCA 303 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Melikian v R [2008] NSWCCA 156 Nguyen v R [2019] NSWCCA 213 Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 R v James [2017] NSWCCA 287 Roberts (a Pseudonym) v R [2019] NSWCCA 102 Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; 247 A Crim R 272 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Woods v R [2017] NSWCCA 5 Yacoub v R [2019] NSWCCA 47 Texts Cited: R Hickey, "Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title" (2003) 66 Modern Law Review 368 Category: Principal judgment Parties: Fredi El Kheir (Applicant) Crown (Respondent) Representation: Counsel: G James QC (Applicant) D Patch (Respondent)