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Ayshow v R

Ayshow v R

Case [2011] NSWCCA 240 11 November 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ayshow v R [2011] NSWCCA 240
Hearing dates: 8 September 2011
Decision date: 11 November 2011
Before: Bathurst CJ at 1
James J at 2
Johnson J at 3
Decision:
Leave to appeal granted.
Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW - sentence - pleas of guilty - supply commercial quantity of a prohibited drug (ecstasy) - supply a prohibited drug (methylamphetamine) - possession of pistol - Form 1 offences including possession of a Taser-like stun device, possession of a document containing instructions for the manufacture of ecstasy and knowingly dealing in the proceeds of crime ($50,060.85) - whether error in assessment of objective seriousness of ecstasy commercial supply offence - whether error in approach to accumulation and totality - whether total effective sentence manifestly excessive - Applicant involved in significant wholesale drug supply and in possession of substantial sum of money and a loaded pistol - no error established - appeal dismissed
Legislation Cited: Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Weapons Prohibition Act 1998
Crimes Act 1900
Confiscation of Proceeds of Crime Act 1989
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: R v AJP [2004] NSWCCA 434
Buttrose v R [2011] NSWCCA 35
HJWG v R [2011] NSWCCA 50
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Dang [2005] NSWCCA 430
R v Shi [2004] NSWCCA 135
R v Sellars [2010] NSWCCA 133
Mulato v R [2006] NSWCCA 282
Melbom v R [2011] NSWCCA 22
R v XX [2009] NSWCCA 115; 195 A Crim R 38
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
R v AZ [2011] NSWCCA 43; 205 A Crim R 222
R v Thalari [2009] NSWCCA 170; 75 NSWLR 307
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
R v Kalache [2000] NSWCCA 2; 111 A Crim R 152
R v Williams [2005] NSWCCA 355; 156 A Crim R 225
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118
Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Category: Principal judgment
Parties: Adeson Johnson Ayshow (Applicant)
Regina (Respondent)
Representation: Mr M Smith (Applicant)
Mr CK Maxwell QC; Ms V Lydiard (Respondent)
Crimlaw (NSW) Pty Ltd (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/80150
Decision under appeal

Date of Decision:

2010-08-09 00:00:00

Before:

His Honour Judge Sides QC

File Number(s):

2009/80150

Judgment

BATHURST CJ : I agree with the orders proposed by Johnson J and with his Honour's reasons.

JAMES J : I agree with Johnson J.

JOHNSON J : The Applicant, Adeson Johnson Ayshow, seeks leave to appeal against sentences imposed by his…

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 Ayshow v R

Details

AGLC: Ayshow v R [2011] NSWCCA 240
Case: [2011] NSWCCA 240
Decision Date: 11 November 2011

CaseChat Overview and Summary

The applicant, in this case, faced multiple charges related to drug trafficking, firearm possession, and proceeds of crime. The dispute centred on the sentencing of the applicant, who had entered pleas of guilty to various charges, including the supply of commercial quantities of ecstasy and methylamphetamine, possession of a pistol, and possession of a Taser-like stun device. The court had to determine whether the sentencing errors had occurred in the assessment of the objective seriousness of the ecstasy commercial supply offence, the approach to accumulation and totality, and whether the total effective sentence was manifestly excessive.

The court examined whether there was an error in assessing the objective seriousness of the ecstasy commercial supply offence and the approach to accumulation and totality. It also considered whether the total effective sentence was manifestly excessive, given the applicant's involvement in significant wholesale drug supply, possession of a substantial sum of money, and a loaded pistol. The court found that no such errors had been established and that the totality principle was appropriately applied.

In dismissing the appeal, the court concluded that the sentencing judge had correctly assessed the objective seriousness of the offences and applied the appropriate principles in determining the cumulative sentence. The court found that the total effective sentence was not manifestly excessive, considering the applicant's criminal history and the nature of the offences committed. The appeal was, therefore, dismissed, and the original sentence was upheld.

Orders