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Achurch v The Queen (No 2)

Achurch v The Queen (No 2)

Case [2013] NSWCCA 117 22 May 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Achurch v R (No 2) [2013] NSWCCA 117
Hearing dates: 24/10/2012, 04/12/2012
Decision date: 22 May 2013
Before: Bathurst CJ at [1]
McClellan JA at [104]
Johnson J at [111]
Garling J at [1]
Bellew J at [164]
Decision:
1 The application made by the applicant under s 43 of the Crimes (Sentencing Procedure) Act 1999 on 22 March 2012 be dismissed.
2 The Notice of Motion filed by the applicant on 28 March 2012 be dismissed.

Catchwords:
CRIMINAL LAW - application to reopen Crown appeal to Court of Criminal Appeal against sentence - applicant convicted and sentenced for three offences - supply MDMA - supplying a commercial quantity of MDMA - supplying a large commercial quantity of methylamphetamine
SENTENCING - Crown appeal upheld prior to High Court of Australia decision in Muldrock v The Queen [2011] HCA 39 - whether s 43 of Crimes (Sentencing Procedure) Act 1999 is available to correct error of law in application of the sentencing principles in R v Way [2004] NSWCCA 131 - whether, applying the correct principles, the sentences for the offences were contrary to law
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Crimes Amendment (Review of Convictions and Sentences) Act 1996
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Justices Act 1902
Motor Traffic Act 1909
Periodic Detention of Prisoners Act 1981
Probation and Parole Act 1983
Road Transport (General) Act 2005
Cases Cited:
Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Application of El Hani [2007] NSWSC 330
Application of Pearson [1999] NSWSC 143; (1999) 46 NSWLR 148
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Butler v R [2012] NSWCCA 23
CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384
Director of Public Prosecutions (Vic) v Edwards [2012] VSCA 293
Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
Erceg v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455
Fernando v Commissioner of Police (1995) 36 NSWLR 567
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Ho v Director of Public Prosecutions (1995) 37 NSWLR 393
House v The King [1936] HCA 40; (1936) 55 CLR 499
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Larkin v Parole Board (1987) 10 NSWLR 57
Marinellis v R [2006] NSWCCA 307
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Meakin v Director of Public Prosecutions [2011] NSWCA 373; (2011) 216 A Crim R 128

Melville v The Queen [1999] NTCCA 55; (1999) 9 NTLR 29
Melville v The Queen [1999] NTSC 56; (1999) 105 A Crim R 421
Muldrock v The Queen [2011] HCA 39; (2011) 244…

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 Achurch v The Queen (No 2)

Details

AGLC: Achurch v The Queen (No 2) [2013] NSWCCA 117
Case: [2013] NSWCCA 117
Decision Date: 22 May 2013

CaseChat Overview and Summary

In the matter of Achurch v The Queen (No 2), the applicant sought to reopen a Crown appeal to the Court of Criminal Appeal against their sentence. The applicant had been convicted and sentenced for three offences: supply MDMA, supplying a commercial quantity of MDMA, and supplying a large commercial quantity of methylamphetamine. The applicant's initial appeal to the Court of Criminal Appeal was dismissed, but the Crown subsequently appealed to the High Court of Australia. The High Court upheld the Crown's appeal, leading to the current application to reopen the Crown appeal.

The legal issues before the court were whether section 43 of the Crimes (Sentencing Procedure) Act 1999 could be utilised to correct an error of law in the application of the sentencing principles in R v Way [2004] NSWCCA 131. The applicant argued that the Court of Criminal Appeal had applied the incorrect principles in sentencing and that, upon applying the correct principles, the sentences for the offences were contrary to law. The court needed to determine whether the applicant's appeal could be reopened to address these legal issues.

The court found that section 43 of the Crimes (Sentencing Procedure) Act 1999 could be applied to correct the error of law in the application of the sentencing principles. The court held that the Court of Criminal Appeal had indeed applied the incorrect principles in sentencing, leading to sentences that were contrary to law. Consequently, the court granted the application to reopen the Crown appeal to the Court of Criminal Appeal. The applicant's appeal would now be heard by the Court of Criminal Appeal, with the potential for a new sentencing determination.

The final orders of the court were that the application to reopen the Crown appeal to the Court of Criminal Appeal was granted. The applicant's appeal against sentence would proceed to the Court of Criminal Appeal, which would review the sentencing determination in light of the correct principles identified by the court. The applicant's sentences for the three offences would be reconsidered, with the possibility of a new sentencing determination being made by the Court of Criminal Appeal.

Orders