Malouf v R [2019] NSWCCA 307

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Malouf v R [2019] NSWCCA 307 Hearing dates: 25 October 2019 Decision date: 20 December 2019 Before: Bathurst CJ at [1]; Fullerton J at [2]; R A Hulme J at [3] Decision: 1. Extend the time for filing the Notice of Application for Leave to Appeal to 30 April 2019. 2. Grant leave to appeal and allow the appeal. 3. Quash the sentences imposed in the District Court on 19 August 2016 and, in lieu, impose an aggregate sentence of imprisonment for 8 years, 9 months with a non-parole period of 6 years, 6 months. The sentence is to date from 10 December 2014. The applicant will become eligible for release on parole upon the expiry of the non-parole period on 9 June 2021. Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – commercial quantity drug supply offences over period of two months – possession of prohibited weapon and conduct drug premises offences – whether error in assessment of objective seriousness of drug supply offences – sentencing judge relied on incorrect reference to prescribed "large commercial quantity" for methylamphetamine – reference was misleading – error in statement as to number of drugs found in possession for purpose of supply upon arrest – no merit in grounds asserting error in relation to consideration of Form 1 offences, applicant's cognitive ability, or parity – no merit in assertion of manifest excess – sentencing discretion re-exercised Legislation Cited: Crimes Act 1900 (NSW), s 193B(3) Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 3A, 21A(3)(g), 21A(3)(i), 21A(3)(h), 33 Criminal Appeal Act 1912 (NSW), s 6(3) Criminal Procedure Act 1986 (NSW), ss 166, 268, Sch 1, Table 1, cl 8 Drug Misuse and Trafficking Act 1985 (NSW), Sch 1, ss 10(1), 25, 25(2), 29, 36Y(1)(a) Weapons Prohibition Act 1998 (NSW), s 7(1) Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Henderson v R [2012] NSWCCA 65 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 R v Fidow [2004] NSWCCA 172 Why v R [2017] NSWCCA 101 Category: Principal judgment Parties: Michael Malouf (Applicant) Regina (Respondent) Representation: Counsel: Mr M Ramage QC (Applicant) Mr D Patch (Crown)