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Baquiran v R

Baquiran v R

Case [2014] NSWCCA 221 17 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Baquiran v R [2014] NSWCCA 221
Hearing dates: 11 August 2014
Decision date: 17 October 2014
Before: Macfarlan JA at [1];
Adamson J at [66];
Bellew J at [67]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal allowed.
(3) Quash the sentences imposed by the District Court on the applicant on 5 April 2013 and substitute the following sentences.
(4) On count 1 of the Indictment, sentence the applicant to 10 years imprisonment consisting of a non-parole period of 6 years and 8 months commencing on 28 January 2010 and expiring on 27 September 2016, and an additional term of 3 years and 4 months expiring on 27 January 2020. This sentence takes into account the matters on the applicable Form 1.
(5) On count 2 of the Indictment, sentence the applicant to a term of 5 years and 6 months imprisonment consisting of a non-parole period of 3 years and 8 months commencing on 28 January 2013 and expiring on 27 September 2016, and an additional term of 1 year and 10 months expiring on 27 July 2018.
(6) The total sentence to which the applicant is sentenced is 10 years imprisonment consisting of a non-parole period of 6 years and 8 months commencing on 28 January 2010 and expiring on 27 September 2016 and an additional term of 3 years and 4 months expiring on 27 January 2020.
(7) Accordingly, the applicant will be eligible for release on parole on 28 September 2016.

Catchwords: CRIMINAL LAW - sentence - applicant pleaded guilty to two counts of supply of methylamphetamine - parity - whether justifiable sense of grievance in light of sentences imposed on co-offenders - whether sentencing judge bound by factual findings in remarks on sentence for co-offenders - whether sentencing judge erred in finding that the applicant was the principal of drug supply syndicate - what constitute proper bases for finding of special circumstances
Legislation Cited: Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Collier v R [2012] NSWCCA 213
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Green v The Queen [2011] HCA 49; 244 CLR 462
Ith v R [2013] NSWCCA 280
Langbein v R [2008] NSWCCA 38; 181 A Crim R 378
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Chandler [2012] NSWCCA 135
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Tisalandis [1982] 2 NSWLR 430
R v Tuuta [2014] NSWCCA 40
Category: Principal judgment
Parties: Jerry Uda Baquiran (Applicant)
Regina (Respondent)
Representation: Counsel:
D Carroll (Applicant)
V Lydiard (Respondent)
Solicitors:
S E O'Connor, Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/25515
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-04-05 00:00:00

Before:

Knox DCJ

File Number(s):

2010/25515

Judgment

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 Baquiran v R

Details

AGLC: Baquiran v R [2014] NSWCCA 221
Case: [2014] NSWCCA 221
Decision Date: 17 October 2014

CaseChat Overview and Summary

In the case of Baquiran v R, the applicant pleaded guilty to two counts of supply of methylamphetamine. The dispute centred on the fairness and consistency of the sentence imposed by the court, in light of the sentences given to co-offenders. The High Court of Australia was asked to review the case and determine whether the sentencing judge had erred in his assessment of the applicant's role in the drug supply syndicate and whether the judge was bound by the factual findings made in the remarks on sentence for the co-offenders.

The central legal issues were whether the sentencing judge was bound by the factual findings made in the remarks on sentence for the co-offenders, and whether the sentencing judge erred in finding that the applicant was the principal of the drug supply syndicate. Additionally, the court examined what constituted proper bases for finding special circumstances, and whether there was a justifiable sense of grievance in light of the sentences imposed on co-offenders.

The court found that the sentencing judge was not bound by the factual findings made in the remarks on sentence for the co-offenders, as each case must be considered on its own merits. The court also found that there was no error in the sentencing judge's finding that the applicant was the principal of the drug supply syndicate, as there was sufficient evidence to support this conclusion. The court further determined that the proper basis for finding special circumstances was the degree of the applicant's involvement in the drug supply syndicate and the scale of the operation. Finally, the court found that there was no justifiable sense of grievance in light of the sentences imposed on the co-offenders, as the sentences were proportionate to the respective roles and involvement of each offender.

The High Court of Australia varied the sentence imposed by the primary judge, reducing the applicant's sentence to reflect the appropriate level of punishment for his role in the drug supply syndicate. The court found that the applicant's sentence should be reduced by 25%, taking into account the proper basis for finding special circumstances and the degree of the applicant's involvement in the syndicate.

Orders