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
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
Martellotta v R (Cth) [2021] NSWCCA 168
Category: Principal judgment Parties: Drew Adam (Applicant)
Rex (Respondent)
NSW Commissioner of Police (Motion only)Representation: Counsel:
Solicitors:
S Kluss (Applicant)
S Duggan (Respondent)
L Chapman (NSW Commissioner of Police)
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…
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- AGLC
- Adam v The King [2023] NSWCCA 62
- Case
- [2023] NSWCCA 62
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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