R v El Helou, El Helou v R [2010] NSWCCA 111

R v El Helou, El Helou v R [2010] NSWCCA 111

Section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) is not invalid for inconsistency with the Commonwealth Criminal Code because both laws can be obeyed simultaneously and the Commonwealth law is not intended to exclude State law. The sentence originally imposed was manifestly inadequate as insufficient...

Source-derived case information.

Parties
Appellant: Regina; Respondent: Gary Mathew El Helou; Intervener: NSW Attorney General
Jurisdiction
Australia
Judgment Date
21 May 2010
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Conviction appeal dismissed; Crown's appeal against sentence allowed; Respondent resentenced.
Legal Topics
Appeal Against Sentence, Appeal Against Conviction, Sentencing, Constitutional Validity, Drug Offences
Criminal Law Constitutional Law Appeal Against Sentence Appeal Against Conviction Sentencing Constitutional Validity Drug Offences

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Parties

Regina

Appellant

Gary Mathew El Helou

Respondent

NSW Attorney General

Intervener

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) is constitutionally invalid as inconsistent with Commonwealth law (Constitution s 109)
  2. 2 Whether s 25(2) is incompatible with the exercise of Commonwealth judicial power
  3. 3 Whether the sentence imposed was manifestly inadequate

Ratio Decidendi

Section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) is not invalid for inconsistency with the Commonwealth Criminal Code because both laws can be obeyed simultaneously and the Commonwealth law is not intended to exclude State law. The sentence originally imposed was manifestly inadequate as insufficient weight was given to the standard non-parole period, particularly given the offence was above mid-range seriousness; accordingly, the respondent was resentenced to a higher non-parole period and total term of imprisonment.

Court Disposition

Conviction appeal dismissed; Crown's appeal against sentence allowed; Respondent resentenced.

Orders

  • Extend time for the filing and serving of a notice of appeal against conviction to 26 March 2010 and treat the draft notice of appeal provided to the Court on 23 March 2010 as the filing and serving of a notice of appeal on or before 26 March 2010.
  • Dismiss the conviction appeal.