Nahlous v R [2010] NSWCCA 58

Nahlous v R [2010] NSWCCA 58

The sentencing exercise miscarried because the applicant should not have been charged with the Code offence. On the facts, the receipt and possession of the $15,000 paid by the undercover police officer was merely an element or consequence of the sale of the 50 unauthorised decoders and did not constitute separate criminality warranting a separate charge and penalty. The sale offence encompassed the criminality of possessing the proceeds of that sale, making it oppressive to prosecute both offences. In the absence of an appeal against conviction, the appropriate course was to quash the sentence for the Code offence and dismiss that charge under s 19B(1)(c) of the Crimes Act 1914 (Cth).

Jurisdiction
Australia
Judgment Date
09 April 2010
Procedural Posture
Application for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal; Challenge to Sentence Imposed in the District Court for an Offence Contrary to S 400.6(1) of the Criminal Code 1995 (cth)
Outcome
Application for leave to appeal against sentence allowed in relation to the count alleging breach of s 400.6(1) of the Criminal Code 1995 (Cth); sentence for that count quashed; charge dismissed under s 19B(1)(c) of the Crimes Act 1914 (Cth).
Legal Topics
['proceeds of Crime' 'unauthorised Decoders' 'abuse of Process' 'totality' 'manifest Excess' 'dismissal Without Punishment Under S 19 B(1)(c)']
['criminal Law' 'sentencing' 'criminal Procedure'] ['proceeds of Crime' 'unauthorised Decoders' 'abuse of Process' 'totality' 'manifest Excess' 'dismissal Without Punishment Under S 19 B(1)(c)']

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Procedural Posture

Application for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal; Challenge to Sentence Imposed in the District Court for an Offence Contrary to S 400.6(1) of the Criminal Code 1995 (cth)

Legal Issues

  1. 1 ['Whether the sentence imposed for the offence contrary to s 400.6(1) of the Criminal Code 1995 (Cth) was disproportionate to the criminality involved.' 'Whether the sentencing judge failed to apply the principle of totality when sentencing for the Code offence.' 'Whether the sentence for the Code offence was manifestly excessive.' 'Whether charging the applicant with both selling 50 unauthorised decoders and possessing the $15,000 received from that sale was oppressive or an abuse of process.' 'Whether the Code offence should be dismissed under s 19B(1)(c) of the Crimes Act 1914 (Cth).']

Ratio Decidendi

The sentencing exercise miscarried because the applicant should not have been charged with the Code offence. On the facts, the receipt and possession of the $15,000 paid by the undercover police officer was merely an element or consequence of the sale of the 50 unauthorised decoders and did not constitute separate criminality warranting a separate charge and penalty. The sale offence encompassed the criminality of possessing the proceeds of that sale, making it oppressive to prosecute both offences. In the absence of an appeal against conviction, the appropriate course was to quash the sentence for the Code offence and dismiss that charge under s 19B(1)(c) of the Crimes Act 1914 (Cth).

Court Disposition

Application for leave to appeal against sentence allowed in relation to the count alleging breach of s 400.6(1) of the Criminal Code 1995 (Cth); sentence for that count quashed; charge dismissed under s 19B(1)(c) of the Crimes Act 1914 (Cth).

Orders

  • ['Application for leave to appeal against sentence is allowed in relation to the count alleging a breach of s 400.6(1) of the Criminal Code 1995 (Cth).' 'The sentence imposed in relation to that count is quashed.' 'The charge is dismissed pursuant to s 19B(1)(c) of the Crimes Act 1914 (Cth).']