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Andary v The Queen

Andary v The Queen

Case [2020] NSWCCA 75 22 April 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Andary v R [2020] NSWCCA 75
Hearing dates: 15 April 2020
Date of orders: 22 April 2020
Decision date: 22 April 2020
Before: R A Hulme J [1]
Hamill J at [2]
Wilson J at [54]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal upheld.
(3)   Quash the sentence imposed in the District Court and in lieu thereof:
(4)   The applicant is sentenced to an aggregate sentence of 3 years and 3 months imprisonment commencing 5 October 2018 and expiring on 4 January 2022 with a non-parole period of 2 years commencing 5 October 2018 and expiring 4 October 2020. The applicant will be eligible for release to parole at the expiration of the non-parole period.

Catchwords: CRIMINAL LAW – sentence appeal – exposing children to drug manufacturing process – applicant rented basement to manufacturer – family lived upstairs – possession of firearms – whether sentencing judge erred in finding drug offence affected objective seriousness of firearms offences – where applicant played no role in drug manufacture – objective seriousness of firearms offence – relevant considerations – applicant re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 32, 53A(2)(b), 54B(4), sch 1
Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1A), 33AC(2)
Firearms Act 1996 (NSW), ss 7(1), 7A(1)
Cases Cited: Akkawi v R; Akkawi v R [2012] NSWCCA 11
Ballard v R [2011] NSWCCA 193
Cao v R [2013] NSWCCA 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
James v R [2017] NSWCCA 287
Krivosic v R [2017] NSWCCA 167
Mokhaiber v R [2011] NSWCCA 10
Moustafa Mariam v R [2017] NSWCCA 292
Mulato v R [2006] NSWCCA 282
R v Amurao [2005] NSWCCA 32
R v AZ [2011] NSWCCA 43
R v Engert (1995) 84 A Crim R 67
R v Mehcur [2002] NSWCCA 56
R v Thurgar (1990) 51 A Crim R 109
Category: Principal judgment
Parties: Joe Andary (Appellant)
Regina (Respondent)
Representation:
Counsel:
SJ Odgers SC (Appellant)
P Leask (Respondent)
Solicitors:
Kiki Kyriacou Lawyers (Appellant)
Director of Public Prosecutions (Respondent)

File Number(s): 2014/243348
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 December 2018

Before:

Grogin ADCJ

File Number(s):

2014/243348

Judgment

R A HULME J: I agree with Hamill J.
HAMILL J: Joe Andary seeks leave to appeal against an aggregate sentence imposed by his Honour Acting Judge Grogin in the District Court on 12 December 2018. The applicant was sentenced in relation to three counts and three other offences were taken into account in sentencing. [1] The first count charged an offence of knowingly take part in the manufacture of a prohibited drug and exposing a child to the process of manufacture. This is an offence against s 24(1A) of the Drug Misuse and Trafficking Act 1985 (NSW) carrying a maximum penalty of 18 years imprisonment: Drug Misuse and Trafficking…

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 Andary v The Queen

Details

AGLC: Andary v The Queen [2020] NSWCCA 75
Case: [2020] NSWCCA 75
Decision Date: 22 April 2020

CaseChat Overview and Summary

In the High Court of Australia, the matter of Andary v The Queen was heard. The applicant, who rented a basement to a drug manufacturer, lived in the same premises with his family upstairs. The applicant was found guilty of drug manufacturing, possession of firearms, and other related offences. The appeal against sentence was based on whether the sentencing judge erred in finding that the drug offence affected the objective seriousness of the firearms offences. The applicant argued that he played no role in the drug manufacturing process and that the objective seriousness of the firearms offence should have been considered independently.

The court examined whether the drug manufacturing offence influenced the severity of the firearms offence. The legal issue revolved around the interaction between the drug offence and the firearms offence in the sentencing process. The court considered the role of the applicant in the drug manufacturing process and whether it was relevant to the objective seriousness of the firearms offence. The court also examined the relevant considerations for determining the objective seriousness of the firearms offence, independent of the drug offence.

The court held that the sentencing judge did not err in finding that the drug offence affected the objective seriousness of the firearms offence. The court found that the applicant's involvement in renting the basement to the drug manufacturer and living in the same premises with his family was relevant to the objective seriousness of the firearms offence. The court concluded that the sentencing judge had correctly considered the relevant factors in determining the sentence. The court also found that the applicant's role in the drug manufacturing process was relevant to the objective seriousness of the firearms offence.

The applicant was re-sentenced, taking into account the court's findings. The court considered the relevant factors for determining the objective seriousness of the firearms offence, including the applicant's role in the drug manufacturing process. The court also considered the impact of the drug offence on the objective seriousness of the firearms offence. The final orders of the court were not specified in the text.

Orders