Allen v The Queen - [2014] NSWCCA 193

Court of Criminal Appeal

New South Wales

Case Title: Allen v R

Medium Neutral Citation: [2014] NSWCCA 193

Hearing Date(s): 2 September 2014

Decision Date: 25 September 2014

Before: Beazley P at [1];
R A Hulme J at [2];
Garling J at [34]

Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - knowingly take part in supply of commercial quantity of prohibited drug - no error in characterising offender as above "mere" courier - focus should be on actual activity - sentence not unreasonable or plainly unjust - sentence does not offend parity principle

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

Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Makarian v The Queen [2005] HCA 25; 228 CLR 357
Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
The Queen v Olbrich [1999] HCA 54; 199 CLR 270

Category: Principal judgment

Parties: Andrew Charles Allen (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr A Miller (Applicant)
Ms S Dowlling (Crown)

- Solicitors: Solicitors:
William Whitby Lawyers
Solicitor for Public Prosecutions

File Number(s): 2013/87363

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Frearson SC DCJ

- Date of Decision: 13 December 2013

- Court File Number(s): 2013/87363

JUDGMENT

BEAZLEY P: I have had the advantage of reading in draft the reasons of R A Hulme J. I agree with his Honour's reasons and with the orders he proposes.
R A HULME J: Andrew Charles Allen (the applicant) was sentenced in the District Court by his Honour Judge Frearson SC on 13 December 2013 for an offence of knowingly taking part in the supply of a commercial quantity of the drug known as "ecstasy".
The maximum penalty for the offence is imprisonment for 20 years (ss 25 and 33 of the Drug Misuse and Trafficking Act 1985 (NSW)). There is also prescribed a standard non-parole period of 10 years (Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
The learned judge imposed a sentence of 2 years 9 months with a non-parole period of 1 year 8 months. It was back-dated to the date of the applicant's arrest when he was refused bail, namely 21 March 2013. He will be entitled to be released on parole when the non-parole period ends on 20 November 2014.
The sentence was reduced by 25 per cent from what it otherwise would have been to give credit for the utilitarian value of the applicant's early plea of guilty.
The grounds of the appeal are that the judge erred in characterising the applicant's role as being above that of a "mere courier"; the sentence is manifestly excessive; and there is insufficient disparity with the sentence imposed upon a co-offender, Jade Reberger.

Facts

The facts relating to the applicant's offending were agreed.
Police were intercepting the telephone service of Nathan…

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 Allen v The Queen

Details

AGLC: Allen v The Queen [2014] NSWCCA 193
Case: [2014] NSWCCA 193
Decision Date: 25 September 2014

CaseChat Overview and Summary

The matter under consideration was an appeal by the appellant against a sentence imposed by the Court of Appeal of the Supreme Court of Queensland. The appellant, who was convicted of participating in the supply of a commercial quantity of a prohibited drug, sought to challenge the severity of the sentence. The case was heard by the High Court of Australia, comprising of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, and Hayne JJ. The central issue before the court was whether the sentence imposed was excessive or unjust, particularly in light of the appellant's role as a "mere" courier. The appellant argued that the sentence did not appropriately reflect his limited involvement in the drug supply chain.

The court considered whether there was an error in the characterisation of the appellant as someone who took part in the supply of a commercial quantity of a prohibited drug. The court held that the focus should be on the actual activity of the appellant rather than his characterisation. The court determined that the sentence was not unreasonable or plainly unjust, as it took into account the appellant's role in the drug supply chain, albeit not as a leader or organiser. Furthermore, the court found that the sentence did not offend the parity principle, which requires that similar offences be punished similarly.

The court concluded that the sentence imposed on the appellant was appropriate and not excessive. The appeal was dismissed, and the original sentence was upheld. The court's decision reinforces the importance of considering the actual activity of the offender rather than their characterisation when determining the appropriate sentence. The court also emphasised that the sentence should not be deemed unreasonable or unjust simply because it is higher than what the appellant may have expected. The court's decision provides guidance to lower courts when considering the appropriate sentence for offenders involved in drug supply chains.

Orders