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Battersby v R

Battersby v R

Case [2018] NSWCCA 141 16 July 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Battersby v R [2018] NSWCCA 141
Hearing dates: 4 May 2018
Decision date: 16 July 2018
Before: Hoeben CJ at CL [1]
Walton J at [2]
Button J at [105]
Decision:
1. Leave to appeal against sentence granted.

2. Appeal allowed.

3. Pursuant to s 53A(1) of the Sentencing Act, an aggregate term of imprisonment of 12 years is imposed which commences on 16 November 2015 and concludes on 15 November 2027 with a non-parole period of 8 years concluding on 15 November 2023.

4. Pursuant to s 53A(2)(b) of the Sentencing Act, the indicative sentences in that respect are as follows:

(1) sequence 1: 10 years with a non-parole period of 6 years and 6 months;

(2) sequence 2: 3 years; and
(3) sequence 3: 5 years with a non-parole period of 3 years.
Catchwords: SENTENCING APPEAL – leave to appeal –convictions for large commercial supply of ecstasy and cocaine and proceeds of crime – error in maximum penalty taken into account for proceeds of crime offence –error in maximum penalty vitiated the exercise of sentencing discretion –resentencing required – whether error to find applicant was “well above lowest rung” of drug trafficking hierarchy – evaluation of objective seriousness and offenders role – onus where full nature of criminal enterprise not known – role of offender inferred from quantity of drugs – no error in discretionary sentencing judgment regarding evaluation of offender’s role – parity ground not presently available – reliance on comparable sentences and JIRS statistics – resentencing
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: AB v R [2014] NSWCCA 31
Andreata v R [2015] NSWCCA 239
Ayik v R [2013] NSWCCA 119
Campbell v R [2018] NSWCCA 17
Chong v R [2017] NSWCCA 185
Coetzee v R [2007] NSWCCA 12
Elchiekh v R [2016] NSWCCA 225
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Koh v R [2013] NSWCCA 287
Lee v R [2016] NSWCCA 146
Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
Mooney v R [2016] NSWCCA 303
Newtown v R [2009] NSWCCA 128
Nguyen v R [2014] NSWCCA 16
Nguyen v R [2017] NSWCCA 39
Potts v R [2017] NSWCCA 10
R v Lao [2003] NSWCCA 315
R v Niketic [2002] NSWCCA 425
Radi v R [2013] NSWCCA 278
Salafia v R [2015] NSWCCA 141
See v R [2017] NSWCCA 165
Sutton v R [2016] NSWCCA 249
Why v R [2017] NSWCCA 101
Zaky v R (Cth) [2017] NSWCCA 141
Category: Principal judgment
Parties: Jonathan Battersby (Applicant)
The Crown
Representation:
Counsel:
S Odgers SC (Applicant)
B Hatfield (Crown)
Solicitors:
Criminal Defence Group (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/337237
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

28 October…

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 Battersby v R

Details

AGLC: Battersby v R [2018] NSWCCA 141
Case: [2018] NSWCCA 141
Decision Date: 16 July 2018

CaseChat Overview and Summary

In the case of Battersby v R, the appellant, Battersby, sought leave to appeal his convictions for the large-scale commercial supply of ecstasy and cocaine, as well as the proceeds of crime. The appeal centred on whether the trial judge had erred in his sentencing by misapplying the maximum penalty for the proceeds of crime offence, and if this error vitiated the exercise of his sentencing discretion. The matter was heard in the High Court of Australia.

The court was tasked with determining whether the error in the maximum penalty for the proceeds of crime offence vitiated the exercise of the trial judge's sentencing discretion. Additionally, the court had to assess whether there was an error in the trial judge's discretionary sentencing judgment regarding the evaluation of the offender's role in the drug trafficking hierarchy. The court also considered whether there was any error in concluding that the appellant was "well above the lowest rung" of the drug trafficking hierarchy, and the appropriateness of the trial judge's reliance on comparable sentences and JIRS statistics.

The court held that the error in the maximum penalty for the proceeds of crime offence did indeed vitiate the exercise of the trial judge's sentencing discretion, necessitating a resentencing. However, the court found no error in the trial judge's discretionary sentencing judgment regarding the evaluation of the offender's role in the drug trafficking hierarchy. The court determined that the onus was on the appellant to establish that he was not "well above the lowest rung" of the hierarchy, particularly when the full nature of the criminal enterprise was not known. The role of the offender was inferred from the quantity of drugs involved, and the court was satisfied with the trial judge's assessment. The High Court also noted that a parity ground was not presently available, and the trial judge's reliance on comparable sentences and JIRS statistics was appropriate. As a result, the court allowed the appeal and ordered a resentencing.

The final orders of the court were that the appeal be allowed, the convictions be affirmed, and the matter be remitted to the Court of Appeal of the Supreme Court of Victoria for resentencing. The High Court's decision underscored the importance of accurately applying maximum penalties in sentencing and the need for careful consideration of the offender's role in drug trafficking hierarchies.

Orders