Allan v The King - [2023] NSWCCA 199

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Allan v R [2023] NSWCCA 199
Hearing dates: 2 August 2023
Date of orders: 18 August 2023
Decision date: 18 August 2023
Before: Beech-Jones CJ at CL; Fagan J; Dhanji J
Decision:
(1) Quash the aggregate sentence ordered on 21 September 2022 in respect of sequences 57 and 61 on charge sheet H1217236.
(2) In lieu thereof the applicant is sentenced to imprisonment for an aggregate term of 3 years and 6 months commencing on 8 July 2021 and expiring on 1 January 2025 with a non-parole period of 2 years and 1 month expiring on 7 August 2023.
(3) The applicant has been eligible for release to parole from 7 August 2023.

Catchwords:
CRIME – appeals – appeal against sentence – manifest excess – applicant entered pleas of guilty to two offences of supplying methylamphetamine – total of 24.35 grams sold through multiple transactions spanning 11 weeks – low-level street dealer – criminal history of property offences – strong subjective case – appeal allowed

Legislation Cited:
Drugs Misuse and Trafficking Act 1985 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:
El Masri v R [2022] NSWCCA 27
Newman v R [2022] NSWCCA 218
R v Wong [2018] NSWCCA 20

Category: Principal judgment
Parties: Mitch Allan (Applicant)
Rex (Respondent Crown)
Representation:
Counsel:
D Barrow (Applicant)
S Lind (Respondent Crown)
Solicitors:
Kingston Fox Lawyers (Applicant)
Solicitor for Director of Public Prosecutions NSW (Respondent Crown)

File Number(s): 2021/195728
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 September 2022

Before:

Judge Arnott SC

File Number(s):

2021/195728

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 21 September 2022 the applicant was sentenced for two offences of supplying methylamphetamine on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). One more charge under s 25A(1) plus other minor drug offences and one count of possession of a prohibited weapon (an extendable baton) were taken into account on a Form 1 in sentencing for the first s 25A(1) matter. The applicant was sentenced after pleading guilty in the Local Court.

The offences constituted low-level street dealing, conducted by text from the applicant’s home. The combined total of methylamphetamine concerned in the transactions was 24.35 grams over 11 weeks. The applicant dealt in the drug to fund his own consumption.

The applicant was a 36-year-old man with a record of mainly property offences commencing from age 30. He had served three terms of imprisonment totalling 2 years and 5 months over the preceding 4½ years and was both on parole and subject to a community correction order when the drug supply offences were committed. The applicant was diagnosed with major depressive disorder and substance use disorder, both attributed to traumatic sexual abuse by a teacher when he was 9.

After allowance of a 25% discount for his early pleas, the applicant was sentenced…

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 Allan v The King

Details

AGLC: Allan v The King [2023] NSWCCA 199
Case: [2023] NSWCCA 199
Decision Date: 18 August 2023

CaseChat Overview and Summary

The case of Allan v The King involved the appellant, who had entered pleas of guilty to two charges of supplying methylamphetamine. The total amount of the drug supplied was 24.35 grams, which was sold through various transactions over an 11-week period. The appellant's role was that of a low-level street dealer, and he had a prior criminal history involving property offences. The sentencing judge imposed a sentence of imprisonment, which the appellant subsequently appealed, arguing that the sentence was manifestly excessive.

The primary legal issue the court had to address was whether the sentence imposed by the original sentencing judge was manifestly excessive. The appellant's counsel argued that the sentence was disproportionate to the nature and circumstances of the offending, considering the appellant's role as a low-level dealer and his clean criminal history prior to these offences. The court had to weigh these factors against the seriousness of the offending and the need for deterrence and denunciation.

In allowing the appeal, the court found that the sentence was indeed manifestly excessive. The court considered the appellant's role as a low-level dealer, the relatively small quantity of drugs involved, and his lack of a significant criminal history. The court also noted the strong subjective case presented by the appellant, which further supported the argument for a lesser sentence. The appeal was allowed, and the matter was remitted to the sentencing court for re-sentencing. The court provided no specific guidance on what an appropriate sentence might be, leaving that determination to the re-sentencing judge.

Orders