El-Sayed v R [2018] NSWCCA 250

El-Sayed v R [2018] NSWCCA 250

Ground 1 was not established because, despite unfortunate references to amphetamine and disagreement with the sentencing judge's midrange assessment, the assessment of objective seriousness was open. Ground 2 was upheld because the sentences imposed, after a 25 per cent plea discount, revealed undiscounted starting points of about 10 years 8 months for Count 1 and 13 years 4 months for Count 2, which were erroneously excessive given the findings and evidence. On resentencing, the offences were below the middle of the range, the applicant retained the 25 per cent plea discount, his rehabilitation prospects were no more than reasonable, the Form 1 matters increased the sentence for Count 2,...

Jurisdiction
Australia
Judgment Date
09 November 2018
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court; Leave Granted and Appeal Allowed
Outcome
Leave to appeal granted; appeal against sentence allowed; District Court sentences quashed; applicant resentenced to an aggregate term of imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months, commencing 1 December 2015.
Legal Topics
['supply of Prohibited Drug in Not Less Than a Commercial Quantity' 'manifestly Excessive Sentence' 'objective Seriousness' 'early Plea Discount' 'special Circumstances' 'aggregate Sentence' 'form 1 Offences']
['criminal Law' 'sentencing'] ['supply of Prohibited Drug in Not Less Than a Commercial Quantity' 'manifestly Excessive Sentence' 'objective Seriousness' 'early Plea Discount' 'special Circumstances' 'aggregate Sentence' 'form 1 Offences']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court; Leave Granted and Appeal Allowed

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of the two drug supply offences by taking into account amphetamine, failing to separately consider each offence, or assessing each offence as midrange.' 'Whether the sentences imposed for the drug supply offences were manifestly excessive.' 'What sentence should be imposed on resentencing, including the effect of early guilty pleas, prior drug supply convictions, Form 1 offences, accumulation, rehabilitation prospects and special circumstances.']

Ratio Decidendi

Ground 1 was not established because, despite unfortunate references to amphetamine and disagreement with the sentencing judge's midrange assessment, the assessment of objective seriousness was open. Ground 2 was upheld because the sentences imposed, after a 25 per cent plea discount, revealed undiscounted starting points of about 10 years 8 months for Count 1 and 13 years 4 months for Count 2, which were erroneously excessive given the findings and evidence. On resentencing, the offences were below the middle of the range, the applicant retained the 25 per cent plea discount, his rehabilitation prospects were no more than reasonable, the Form 1 matters increased the sentence for Count 2,...

Court Disposition

Leave to appeal granted; appeal against sentence allowed; District Court sentences quashed; applicant resentenced to an aggregate term of imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months, commencing 1 December 2015.

Orders

  • ['Leave to appeal granted.' 'Appeal against sentence allowed.' 'Quash the sentences imposed in the District Court on 17 June 2016 for the two offences of supplying a prohibited drug in not less than a commercial quantity.' 'In lieu, sentence the offender to an aggregate term of imprisonment for 7 years and 6 months...