Aiken v The Queen - [2011] NSWCCA 208

Court of Criminal Appeal

New South Wales

Case Title: Aiken v R

Medium Neutral Citation: [2011] NSWCCA 208

Hearing Date(s): 5 August 2011

Decision Date: 09 September 2011

Jurisdiction:

Before:
McClellan CJ at CL at [1]
Simpson J at [22]
Fullerton J at [23]

Decision:
1. Grant leave to appeal.
2. Uphold the appeal and quash the sentences imposed in the District Court.
3. Sentence the applicant as follows:
Count 7: a fixed term of 6 months commencing on 16 October 2008 and expiring on 15 April 2009.
Count 6: a fixed term of 12 months commencing on 16 October 2008 and expiring on 15 October 2009.
Count 1: a fixed term of 2 years 9 months commencing on 16 January 2009 and expiring on 15 October 2011.
Count 2: a fixed term of 3 years commencing on 16 April 2009 and expiring on 15 April 2012.
Count 5: a fixed term of 2 years 3 months commencing on 16 July 2010 and expiring on 15 October 2012.
Count 3: having regard to the matters on the Form 1 a non-parole period of 3 years commencing on 16 October 2010 and expiring on 15 October 2013 with an additional term of 2 years expiring on 15 October 2015.
Count 8: a fixed term of 12 months commencing on 16 October 2010 and expiring on 15 October 2011.
Count 9: a fixed term of 6 months commencing on 16 October 2010 and expiring on 15 April 2011.

Catchwords:
CRIMINAL LAW - application for leave to appeal against sentence - drug supply offences - Form 1 offence possession of mobile telephone whilst in custody without reasonable excuse - offences committed whilst applicant serving prison sentence - plea of guilty - effective sentence backdated to commence at expiry of parole period of earlier sentence - no order for revocation of parole made - period of custody solely referrable to present offences - error established - inconsistency between individual sentences imposed - relative quantities involved in each count - sentences for affected individual counts wholly subsumed by other sentences - adjustments to individual sentences - parity - intervention of the Court not justified - leave granted - sentences quashed - applicant re-sentenced

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Summary Offences Act 1988 (NSW)

Cases Cited:
Callaghan v The Queen (2006) 160 A Crim R 145
Postiglione v The Queen (1997) 189 CLR 2
R v Ellmore [2002] NSWCCA 242
R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740

Texts Cited:

Category: Principal judgment

Parties:
Luke Matthew Aiken (Applicant)
Regina

Representation

- Counsel:
Counsel
S Buchen (Applicant)
S Bowers (Crown)

- Solicitors:
Solicitors
The Law Practice (Applicant)
Solicitor for Public Prosecutions (Crown)

File number(s): 2009/2592

Decision Under Appeal

- Court / Tribunal:

- Before: O'Connor DCJ

- Date of Decision: 14 December 2009

- Citation: N/A

- Court File Number(s) 2009/2592

Publication Restriction:

Judgment

McCLELLAN CJ at CL: Luke Aiken pleaded guilty to 8 counts relating to…

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 Aiken v The Queen

Details

AGLC: Aiken v The Queen [2011] NSWCCA 208
Case: [2011] NSWCCA 208
Decision Date: 09 September 2011

CaseChat Overview and Summary

Aiken, the applicant, appealed against his sentence for drug supply offences, arguing that the court erred in imposing a sentence for possession of a mobile telephone while in custody without reasonable excuse. The appeal was heard by the High Court of Australia. The legal issues before the court included whether the court had erred in imposing a sentence for the mobile phone offence, the inconsistency between the sentences imposed, and whether the Court should intervene to ensure parity.

The court found that the error in imposing a sentence for the mobile phone offence was established. The court noted that the period of custody was solely referrable to the present offences and that no order for revocation of parole had been made. The court also found that there was an inconsistency between the sentences imposed for the drug supply offences, as the sentences for certain counts were wholly subsumed by other sentences. However, the court found that intervention was not justified as the error did not affect the overall sentence. The court quashed the sentences and ordered that the applicant be re-sentenced.

The court found that the sentences for the drug supply offences were not inconsistent and that the sentences for certain counts were wholly subsumed by other sentences. The court noted that the applicant had committed the offences while serving a prison sentence and that the effective sentence was backdated to commence at the expiry of the parole period of the earlier sentence. The court found that the applicant's argument for parity was not persuasive and that intervention was not justified. The court granted leave to appeal and quashed the sentences, ordering that the applicant be re-sentenced.

Orders