Leave to appeal against sentence granted. Appeal dismissed.
Catchwords:
CRIMINAL LAW - sentence appeal - pleas of guilty - offer to supply large commercial quantity of ecstasy - supply commercial quantity of cocaine (two counts) - supply cocaine - whether error in finding (on offer to supply ecstasy count) that Appellant had access to and was in a position to actually supply 10,000 ecstasy tablets - no error demonstrated - whether individual sentences or total effect sentence manifestly excessive - sentences not manifestly excessive - appeal dismissed
[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.
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Details
AGLC
Aoun v R [2011] NSWCCA 284
Case
[2011] NSWCCA 284
Decision Date
CaseChat Overview and Summary
In the matter of Aoun v R, the appellant sought to appeal against his sentences following his pleas of guilty to drug trafficking offences. The Crown responded to the appeal, contending that the appellant had not demonstrated any error in accordance with the grounds of appeal presented. The primary issue for the court was to determine whether the appellant had demonstrated an error in the findings made by the sentencing judge, particularly in relation to the quantity of ecstasy tablets the appellant had access to and was in a position to supply. Additionally, the court was required to assess whether the individual sentences or the total effect sentence imposed were manifestly excessive.
The court considered the principles governing the jurisdiction to interfere with a sentencing decision, emphasising that the court can only intervene where there has been an error of principle, mistake of fact or law. The court reiterated that it is not a re-hearing and cannot substitute its own findings for those of the trial judge. The court found that the appellant had not demonstrated any error in the challenged findings, as the evidence supported the sentencing judge's conclusions. The court also found that neither the individual sentences nor the total effect sentence were manifestly excessive, as they were commensurate with the gravity of the offences and the appellant's criminal conduct.
Given the findings above, the appeal was dismissed. The court upheld the sentences imposed by the sentencing judge and found that there was no error that warranted interference. The appellant's appeal against his sentences was therefore unsuccessful.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
ADAMS J
JOHNSON J
The Crown submitted that error had not been demonstrated in accordance with Grounds 1 or 2. Decision Ground 1 seeks to challenge a finding made by the sentencing Judge. This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. It is important to keep in mind the limits of the jurisdiction of this Court where a finding of a first-instance Judge is challenged on appeal. A frequently cited and applied statement of principle is that of Hunt J (Carruthers and Wood JJ agreeing) in R v O'Donoghue at 401: "It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this court is not by way of re-hearing. An appeal which is not by way of re-hearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this court has no power to substitute its own findings for those of the trial judge. The members of this court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice: see Regina v Merritt & Roso (1985) 19 A Crim R 360 at 372-373; Regina v Kyriakou (1987) 29 A Crim R 50 at 60-61." This statement has been applied in a multitude of cases, including sentence appeals where a finding of fact is challenged on appeal: R v Khouzame [2000] NSWCCA 505 at [38]-[41]; R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at 573 [60]-[61]; Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252 at 265 [56]; Camm v R [2009] NSWCCA 141 at [68]-[70]; SBF v R [2009] NSWCCA 231; 198 A Crim R 219 at 335 [75]. I approach this ground of appeal with these principles in mind. It is helpful to place the challenged findings in the broader context of findings made by the sentencing Judge concerning the Applicant's course of criminal conduct. His Honour said (ROS14): "He told Sam Borenstein that he came under pressure from the undercover officer. The Offender did not give evidence and the evidence placed before the Court does not support this claim. The Court is satisfied beyond a reasonable doubt the offences were premeditated and that he appreciated by his participation in them he was enmeshing himself in organised criminal activity. None of the four offences are an isolated aberration. It is clear that the Offender was involved in drug trafficking at a wholesale level to a substantial degree and for financial reward. The four offences cover a period slightly in excess of a month. It is clear that his illegal activities were not limited to his dealings with the undercover officer."