Anjoul v The Queen - [2014] NSWCCA 234

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Anjoul v R [2014] NSWCCA 234
Hearing dates: 17 October 2014
Decision date: 31 October 2014
Before: Hoeben CJ at CL at [1]
Hidden J at [2]
Davies J at [4]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentencing - offences of drug supply, possess prohibited weapon and possess false identification documents - effect on third parties if custodial sentence imposed - applicant's brother with multiple health issues including muscular dystrophy - applicant is brother's carer - exceptional circumstances shown - impact on sentence - non-parole period significantly shortened - whether sentencing exercise correctly approached - intensive corrections orders - no error shown
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Dipangkear v Regina [2010] NSWCCA 156
Douar v R [2005] NSWCCA 455
House v The King (1936) 55 CLR 499
R v Hinton [2002] NSWCCA 405
R v Zamagias [2002] NSWCCA 17
Category: Principal judgment
Parties: Anthony Anjoul (Applicant)
Crown
Representation: Counsel:
G James QC (Applicant)
N Williams (Crown)
Solicitors:
K M Legal Pty Ltd (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): CCA 2013/306795
Decision under appeal

Date of Decision:

2014-09-11 00:00:00

Before:

Sides DCJ

File Number(s):

2013/306795

Judgment

HOEBEN CJ AT CL: I agree with Davies J.

HIDDEN J: Undoubtedly, the extent of Raymond Anjoul's dependence on the applicant was a troubling, indeed distressing, issue in this case. However, as is apparent from the judgment of Davies J, the sentencing judge gave it careful consideration and afforded it the weight it deserved. Error has not been shown in his Honour's approach.

I agree with the orders proposed by Davies J and with his Honour's reasons.

DAVIES J: The Applicant pleaded guilty to the following five offences committed on 11 October 2013:

(a) Sequence 2: Possession of a prohibited weapon, being a can of pepper spray. The maximum penalty is 14 years imprisonment. There is a standard non-parole period of three years;

(b) Sequences 5 and 6: Possession of identification information to facilitate the commission of an indictable offence. The maximum penalty is 7 years imprisonment.

(c) Sequence 7: Deal with the proceeds of crime being $950.00 knowing it was the proceeds of crime. The maximum penalty is 15 years imprisonment

(d) Sequence 8: Supplying 168.4g of cocaine being the indictable quantity. The maximum penalty is 15 years imprisonment.

The Applicant also pleaded guilty to two further summary offences committed on the same day. Those offences, which were before the District Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), were as follows:

(e) Sequence 1: Drive while suspended. The maximum penalty is 18 months imprisonment and/or a fine of $3,300 with an automatic period of disqualification of 12 months cumulative upon any period of disqualification or suspension existing at the time of conviction;

(f) Sequence 4: Possession of a false licence. The maximum penalty is 20…

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 Anjoul v The Queen

Details

AGLC: Anjoul v The Queen [2014] NSWCCA 234
Case: [2014] NSWCCA 234
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the case of Anjoul v The Queen, the applicant, a person convicted of drug supply, possessing a prohibited weapon, and possessing false identification documents, appealed against his sentence. The applicant, who had no prior criminal history, was the primary carer for his brother who suffers from muscular dystrophy and other serious health issues. The primary concern in the appeal was whether the sentencing exercise was correctly approached by the original sentencing court, and if not, whether the resulting non-parole period was appropriate.

The central legal issue before the court was whether the original sentencing court had adequately considered the impact on third parties if a custodial sentence was imposed. This included the applicant's role as his brother's sole carer and the potential consequences for his brother's health and wellbeing. The court was also asked to consider if the sentencing court had correctly balanced the need for punishment and deterrence against the potential harm to third parties.

The court found that the sentencing judge had indeed considered the impact on third parties and had appropriately weighed this against the need for punishment and deterrence. The court held that the original sentencing judge had not erred in their approach. The applicant had demonstrated exceptional circumstances by showing his critical role in his brother's care. However, the court concluded that while these circumstances warranted a reduced non-parole period, they did not necessitate an entirely non-custodial sentence. Therefore, the original sentence, which included an intensive corrections order, was deemed appropriate.

The court upheld the original sentence but did not alter the non-parole period, reducing it to reflect the exceptional circumstances. The final order was that the applicant's sentence would remain as imposed by the original sentencing court, with the non-parole period adjusted to account for the impact on his brother.

Orders