Yousef Jidah v R [2014] NSWCCA 270

Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Convictions and Sentences Imposed in the District Court Before Frearson SC DCJ

Legal Issues

1. 1 ['Whether convictions on both Count 8 and Count 9 caused a miscarriage of justice because the elements of the supply count were contained in the elements of the attempted possession of precursor count.' 'Whether the inclusion of both counts on the indictment gave rise to a plea in bar or abuse of process.' 'Whether one conviction had to be quashed to avoid double punishment.' 'Whether the sentencing judge failed to assess the objective seriousness of the supply count by taking account of the interrelated nature of the supply and possession counts.' 'Whether it was open to find that the appellant knew the size of the enterprise involved hundreds of kilograms of product.' 'Whether the sentencing judge erred by placing too much significance on the standard non-parole period.' 'Whether parity required re-sentencing in light of the sentences imposed on co-offenders.']

Ratio Decidendi

The appeal against conviction failed because the s 25(2) supply offence and the s 24A attempted possession of precursor offence had different physical and mental elements: the supply count required proof of supply of a prohibited drug in not less than the large commercial quantity, while the possession count required proof that the appellant attempted to possess a precursor intending it be used by another person to manufacture a prohibited drug. A conviction or acquittal on one count would not give rise to autrefois convict or autrefois acquit, the laying of both charges was not vexatious or oppressive, and neither count wholly captured the criminality of the other. Leave to appeal...

Court Disposition

Appeal against conviction dismissed; leave to appeal against sentence granted; sentence on Count 8 quashed and replaced with a sentence of imprisonment for 10 years with a non-parole period of 6 years and an additional term of 4 years.

Orders

• ['Appeal against conviction dismissed.' 'Grant leave to appeal against sentence.' 'The sentence imposed in the District Court on 23 September 2011 on Count 8 on the indictment is quashed.' 'In lieu thereof, a sentence of imprisonment of 10 years is imposed, commencing on 11 May 2010 and expiring on 10 May 2020,...