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AB v The Queen

AB v The Queen

Case [2013] NSWCCA 333 23 December 2013

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Court of Criminal Appeal

New South Wales

Case Title: AB v R

Medium Neutral Citation: [2013] NSWCCA 333

Hearing Date(s): 4 December 2013

Decision Date: 23 December 2013

Before: Leeming JA at [1]
Hall J at [2]
Schmidt J at [3]

Decision:
1. Leave to file the appeal out of time is allowed.

2. The appeal be dismissed.

Catchwords: CRIMINAL LAW - appeal - leave sought for extension of time to lodge appeal - leave granted - importation of border-controlled drug - whether error in assessment of discount on sentence - whether applicant entitled to significant discount for assistance - appeal dismissed

Legislation Cited: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)

Cases Cited: House v The King [1936] HCA 40; (1936) 55 CLR 499
Lee v R [2012] NSWCCA 123
R v A [2004] NSWCCA 292
R v AMT [2005] NSWCCA 151
R v Barrientos [1999] NSWCCA 1
R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63
R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
R v El Hani [2004] NSWCCA 162
R v NP [2003] NSWCCA 195
R v OPA [2004] NSWCCA 464
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
R v Tae [2005] NSWCCA 29
R v Vo [2006] NSWCCA 165
Regina v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249

Category: Principal judgment

Parties: AB (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr D Barrow (Applicant)
Mr P McGuire (Respondent)

- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2011/409416

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Blackmore DCJ

- Date of Decision: 23 March 2012

- Court File Number(s): 2011/409416

Publication Restriction: None

JUDGMENT

LEEMING JA: I agree with Schmidt J.
HALL J: I agree with Schmidt J.
SCHMIDT J: On 22 February 2012 the applicant pleaded guilty in the Local Court to a charge under s 307.2(1) of the Criminal Code Act 1995 (Cth) of importing a marketable quantity of a border-controlled drug, cocaine. The maximum penalty for the offence was 25 years imprisonment. On 22 March 2012, Blackmore DCJ sentenced the applicant to serve 5 years imprisonment, with a non-parole period of 2 years, 6 months, after a 25% discount of 50% for her early plea and assistance to authorities. The sentence dated from her arrest at Sydney airport on 18 December 2011.
A notice of intention to appeal was lodged on 24 October 2012. The appeal was lodged on 9 August 2013. The applicant sought an extension of time to lodge her appeal, which was not opposed by the Crown. That application is granted.
The applicant relies on only one ground of appeal, namely that his Honour erred in his assessment of the discount she should receive on sentence for the assistance she gave to authorities…

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 The Queen

Details

AGLC: AB v The Queen [2013] NSWCCA 333
Case: [2013] NSWCCA 333
Decision Date: 23 December 2013

CaseChat Overview and Summary

The case of AB v The Queen involved the appellant, AB, who was convicted of importing a border-controlled drug into Australia. AB sought leave to appeal against the sentence imposed by the primary court. The primary issue was whether the court should grant AB leave to extend the time to lodge an appeal and if the sentencing court had erred in its assessment of the discount for assistance. AB argued that he was entitled to a significant discount due to his substantial assistance to the authorities. The appeal was heard by the court which considered the grounds for extending the time to lodge the appeal and the appropriateness of the sentence discount for assistance.

The court examined the statutory provisions governing the extension of time for lodging an appeal and assessed whether there were exceptional circumstances justifying an extension. The court also evaluated the criteria for determining the extent of the discount for assistance under the relevant legislation. AB contended that he provided substantial assistance, which warranted a significant reduction in his sentence. The court scrutinised the evidence of AB's assistance and the sentencing judge's reasons for the discount applied. It was critical to determine whether the sentencing judge had correctly assessed the level of assistance provided by AB.

The court granted leave for the extension of time to lodge the appeal, acknowledging the exceptional circumstances presented. It found that the sentencing judge had made an error in the assessment of the discount for assistance. However, the court concluded that this error did not materially affect the overall sentence imposed on AB. Consequently, the appeal was dismissed, and the sentence was upheld. The court determined that AB's assistance, while substantial, did not warrant a significantly lower sentence under the criteria provided by law.

Orders