Elsaj v R [2017] NSWCCA 124

Elsaj v R [2017] NSWCCA 124

The applicant did not establish that the aggregate sentence was plainly unjust or manifestly wrong. His attack on a notional starting point was misconceived because the aggregate sentence was the product of instinctive synthesis having regard to the indicative sentences, and the guilty plea discounts applied to the indicative sentences. The seven cases relied on were not shown to reveal a unifying principle and were either factually different, constrained by Crown concessions, constrained by parity with co-offenders, or merely dismissed appeals. Having regard to the objective seriousness of multiple drug supply and proceeds offences, the maximum penalties and standard non-parole periods,...

Jurisdiction
Australia
Judgment Date
08 June 2017
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of Nsw; Leave Granted and Appeal Determined by the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['manifest Excessiveness' 'aggregate Sentence' 'comparable Cases in Sentencing' 'guilty Plea Discount' 'non Parole Period' 'special Circumstances' 'hardship to Third Parties']
['criminal Law' 'sentencing' 'drug Offences' 'proceeds of Crime'] ['manifest Excessiveness' 'aggregate Sentence' 'comparable Cases in Sentencing' 'guilty Plea Discount' 'non Parole Period' 'special Circumstances' 'hardship to Third Parties']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of Nsw; Leave Granted and Appeal Determined by the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the aggregate sentence of imprisonment for 16 years and 6 months with a non-parole period of 11 years and 6 months was manifestly excessive.' "Whether the applicant's reliance on seven asserted comparable cases demonstrated sentencing error or inconsistency." 'Whether the sentencing judge erred by treating the offences as objectively serious, premeditated, motivated by greed, and committed by an applicant well up the drug trafficking hierarchy.' "Whether the applicant's subjective circumstances, lack of prior full-time custody, prospects of rehabilitation, and family hardship required a lesser sentence."]

Ratio Decidendi

The applicant did not establish that the aggregate sentence was plainly unjust or manifestly wrong. His attack on a notional starting point was misconceived because the aggregate sentence was the product of instinctive synthesis having regard to the indicative sentences, and the guilty plea discounts applied to the indicative sentences. The seven cases relied on were not shown to reveal a unifying principle and were either factually different, constrained by Crown concessions, constrained by parity with co-offenders, or merely dismissed appeals. Having regard to the objective seriousness of multiple drug supply and proceeds offences, the maximum penalties and standard non-parole periods,...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']