A v R

Case [2020] NSWCCA 145 1 July 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: A v R [2020] NSWCCA 145
Hearing dates: 17 February 2020
14 April 2020 – Written Submissions
Date of orders: 1 July 2020
Decision date: 01 July 2020
Before: Johnson J at [1]; Price J at [2]; Davies J at [147]
Decision:
(1) Leave to appeal granted.
(2) Appeal against sentence allowed.
(3) Direct the Registrar of the District Court at Parramatta to amend the Court’s record to correctly reflect the sentence imposed in the District Court of New South Wales on 6 March
2019.
(4) The sentence imposed in the District Court of New
South Wales on 6 March 2019 is quashed.
(5) In lieu thereof, A is sentenced to
11 years 3 months imprisonment consisting of a non-parole period of 7 years 11 months, commencing on 22 June 2016 and expiring on 21
May 2024, with a balance of term of 3 years 4 months which will expire on 21 September 2027.
The applicant will be eligible to be released on parole on 21 May 2024

Catchwords:
CRIME – Appeals – Appeal against aggregate sentence – prohibited drug offences including not less than large commercial quantity of methylamphetamine
– whether error in District Court record was an error in sentence – whether misstatement of facts had the
capacity to affect the sentence – whether error in assessing the objective seriousness of the supply of the large commercial quantity of methylamphetamine
– whether error in failing to give a sentencing discount for past assistance to police – whether error in determining special circumstances – whether marked disparity with sentences imposed on co-offenders –
re-sentence – indicative sentences – aggregate sentence imposed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
ss 23, 43, 53A
Crimes Act 1900 (NSW) s 93T
Criminal Appeal Act 1912 (NSW) ss 5, 6
Drug Misuse and Trafficking Act 1985 (NSW) s 25

Cases Cited:
Baxter v The Queen [2007] NSWCCA 337; (2007) 173
A Crim R 284
BJS v R [2013] NSWCCA 123
Green v The Queen; Quinn v The Queen (2011) 244
CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
JM v R [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
LB v R [2013] NSWCCA 70
Lees v R [2019] NSWCCA 65
Mulato v R [2006] NSWCCA 282
Newman (a pseudonym) v R [2019] NSWCCA 157
Paxton v R [2011] NSWCCA 242; (2011) A Crim R
104
PD v R [2012] NSWCCA 244
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Cramp [2004] NSWCCA 264
R v XX [2017] NSWCCA 90
R v Ilbay [2000] NSWCCA 251
R v Kollas and Mitchell [2002] NSWCCA 491
Roberts (a pseudonym) v R [2019] NSWCCA 102
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Thomas v R [2019] NSWCCA 88

Texts Cited:
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Category: Principal judgment

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v R

Details

AGLC: A v R [2020] NSWCCA 145
Case: [2020] NSWCCA 145
Decision Date: 01 July 2020

CaseChat Overview and Summary

The appellant, A, appealed against his aggregate sentence for various drug-related offences, including the supply of a large commercial quantity of methylamphetamine, imposed by the District Court. The appeal was heard by the Court of Appeal, which had to determine whether there were any errors in the sentencing process. The primary issues revolved around whether the District Court had erred in recording the sentence, whether the misstatement of facts had the potential to affect the sentence, and whether there were errors in assessing the objective seriousness of the drug supply, failing to give a discount for past assistance to the police, determining special circumstances, and the marked disparity with sentences imposed on co-offenders.

The court examined the record of the District Court's sentencing process and found that there were indeed errors in the sentencing. The misstatement of facts did have the capacity to affect the sentence, as it could potentially alter the perception of the objective seriousness of the crime. Additionally, the court found that the District Court had erred in failing to give a discount for past assistance to the police, as the appellant had provided valuable information and assistance. The court also determined that there were errors in assessing the special circumstances and the marked disparity with sentences imposed on co-offenders. These errors warranted a re-sentencing of the appellant.

Consequently, the Court of Appeal quashed the original sentence and ordered a re-sentencing by the District Court, taking into account the indicative sentences and the factors identified in the appeal. The court emphasised that the District Court should consider the appellant's past assistance to the police, the special circumstances, and the disparity with co-offenders' sentences when imposing the new aggregate sentence.

Orders