AB v R

Case [2013] NSWCCA 273 14 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AB v R [2013] NSWCCA 273
Hearing dates: 18 October 2013
Decision date: 14 November 2013
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Bellew J at [113]
Decision:
Application for extension of time to appeal against sentence refused

Catchwords: CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in November 2009 -Applicant pleaded guilty to offences of knowingly taking part in the manufacture of a prohibited drug (s.24(1) Drug Misuse and Trafficking Act 1985), possession of a precursor (s.24A(1)) and manufacturing a large commercial quantity of a prohibited drug (s.24(2)) - s.24(2) offence committed whilst Applicant on bail for s.24(1) and s.24A(1) offences - only s.24(2) offence subject to standard non-parole period - claim of Muldrock error in relation to s.24(2) offence - no challenge made to sentences for s.24(1) and s.24(2) offences - held no Muldrock error demonstrated - claim of disparity between the sentences of the Applicant and his co-offender for the s.24(2) offence - held no legitimate sense of grievance in relation to the sentence imposed on co-offender - no lesser sentence warranted in any event - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Listening Devices Act 1984
Weapons Prohibition Act 1996
Cases Cited: Abdul v R [2013] NSWCCA 247
Alameddine v R [2006] NSWCCA 317
Hili v The Queen [2010] HCA 42; 242 CLR 520
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Ng v R [2011] NSWCCA 227; 214 A Crim R 191
R v AB [2011] NSWCCA 229
R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
R v AZ [2011] NSWCCA 43; 205 A Crim R 222
R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505
R v Thalari [2009] NSWCCA 170; 75 NSWLR 307
Vandeventer v R [2013] NSWCCA 33
Texts Cited: ---
Category: Principal judgment
Parties: AB (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr E Ozen (Applicant)
Ms MM Cinque (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/4435
Publication restriction: ---
Decision under appeal

Citation:

---

Date of Decision:

2009-11-11 00:00:00

Before:

Ellis DCJ

File Number(s):

2008/5378

Judgment

HOEBEN CJ at CL: I agree with Johnson J and the order which he proposes.

JOHNSON J: The Applicant, AB, seeks an extension of time to appeal against sentences imposed in the District Court on 11 November 2009. Because of the Applicant's assistance to authorities, a non-publication order was made concerning his name in the District Court, and this judgment also utilises a pseudonym to describe him.

The Offences and Sentences

The Applicant pleaded guilty to two groups of offences. The first group, described as the Mandalong offences, comprised:

(a) an offence committed between September 2006 and March 2007…

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 AB v R

Details

AGLC: AB v R [2013] NSWCCA 273
Case: [2013] NSWCCA 273
Decision Date: 14 November 2013

CaseChat Overview and Summary

In the case of AB v R, the applicant sought an extension of time to appeal against his sentence, which was imposed following his guilty plea to multiple drug manufacturing and possession offences. The applicant was sentenced in November 2009 for offences under the Drug Misuse and Trafficking Act 1985, including taking part in the manufacture of a prohibited drug, possession of a precursor, and manufacturing a large commercial quantity of a prohibited drug. The court had to determine whether there was a Muldrock error in the applicant's sentence and if the disparity between his sentence and that of his co-offender warranted a lesser sentence.

The primary legal issues involved whether there was a Muldrock error, which refers to an error in the application of the non-parole period for one of the offences. Additionally, the court assessed whether the disparity between the applicant's sentence and that of his co-offender for the same offence warranted a reconsideration of the sentence. The applicant did not challenge the sentences for the other offences, focusing solely on the manufacturing offence that carried a standard non-parole period.

The court found no Muldrock error in the applicant's sentence, as the sentencing judge correctly applied the law. The court also determined that the applicant had no legitimate sense of grievance concerning the disparity between his sentence and that of his co-offender, and that the sentences were proportionate and justified. Consequently, the application for an extension of time to appeal was refused due to the insufficient prospects of success.

The court's decision was final, with no further orders made beyond the refusal of the extension of time to appeal.

Orders