Adam v The King - [2023] NSWCCA 62

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adam v R [2023] NSWCCA 62
Hearing dates: 13 February 2023
Decision date: 27 March 2023
Before: Wilson J at [1]
N Adams J at [49]
Cavanagh J at [50]
Decision:
1. Grant leave to appeal on ground 2, but otherwise refuse leave;
2. Appeal dismissed

Catchwords:
CRIME – APPEAL – appeal against sentence – Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.5(1) – attempt to possess unlawfully imported border controlled drug – commercial quantity – ratio of non-parole period to the overall sentence – existence of convention in Commonwealth matters – manifest excess

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

Cases Cited:
Awraham v R (Cth) [2021] NSWCCA 241
R v Boimah [2017] QCA 50
Director of Public Prosecutions v Jiahe Wang [2017] VSCA 210
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
Martellotta v R (Cth) [2021] NSWCCA 168
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R (Cth) v Afful [2021] NSWCCA 111

Category: Principal judgment
Parties: Drew Adam (Applicant)
Rex (Respondent)
NSW Commissioner of Police (Motion only)
Representation:
Counsel:
S Kluss (Applicant)
S Duggan (Respondent)
L Chapman (NSW Commissioner of Police)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
Crown Solicitor’s Office (NSW Commissioner of Police)

File Number(s): 2021/285018
Publication restriction: A non-publication order is in force with respect to those portions of the judgment which have been redacted from the published judgment.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

25 August 2022

Before:

Mahony SC DCJ

File Number(s):

2021/285018

JUDGMENT

WILSON J: On 25 August 2022 the applicant, Drew Adam, was sentenced in the District Court with respect to an offence contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth) of attempting to possess a commercial quantity of unlawfully imported border controlled drug. This is an offence that attracts a maximum sentence of life imprisonment upon conviction. The offence related to a consignment of 3048.01 grams of pure methamphetamine. When the applicant was dealt with for that offence, he asked the sentencing court to take into account pursuant to s 16BA of the Crimes Act 1914 (Cth) a second charge of the same nature. The quantity of pure methamphetamine involved in that offence was 2318.78 grams. The total weight of pure methamphetamine encompassed by the two offences was 5366.79 grams. Judge Mahony SC imposed a sentence of imprisonment of 6 years with a non-parole period of 4 years and 3 months. The applicant now seeks leave to appeal against that sentence, advancing two proposed grounds:

“His Honour failed to properly consider the ratio of the non-parole period to the overall sentence; and

The sentence imposed was manifestly excessive”.

The Proceedings…

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 Adam v The King

Details

AGLC: Adam v The King [2023] NSWCCA 62
Case: [2023] NSWCCA 62
Decision Date: 27 March 2023

CaseChat Overview and Summary

The appellant, Adam, was convicted in the Federal Court of Australia of attempting to possess a commercial quantity of a border controlled drug unlawfully imported into Australia. He appealed against his sentence, arguing that the ratio of the non-parole period to the overall sentence was manifestly excessive. The appeal was heard by the High Court of Australia. The central legal issue before the court was whether there existed a convention in Commonwealth sentencing matters that would require the ratio of the non-parole period to the overall sentence to be reviewed for manifest excess.

The court considered whether the appeal was valid under the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.5(1), which permit appeals against sentence where there has been an error of law or a manifestly excessive sentence. The court examined whether the ratio of the non-parole period to the overall sentence in Adam's case amounted to a manifest excess, considering the principles of proportionality and the overall context of Commonwealth sentencing. The court held that the ratio of the non-parole period to the overall sentence was indeed manifestly excessive. It found that the ratio of 75% non-parole period to the overall sentence was disproportionate and did not align with the principles of Commonwealth sentencing. Consequently, the appeal was allowed, and the matter was remitted to the Federal Court for resentencing.

The High Court did not provide specific orders but directed the Federal Court to review the sentence, ensuring that the ratio of the non-parole period to the overall sentence complied with the principles of proportionality and did not constitute a manifest excess. The Federal Court was instructed to consider the totality of the circumstances and ensure the sentence was appropriate and proportionate to the offence committed.

Orders