Batty v The Queen - [2016] NSWCCA 121

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Batty v R [2016] NSWCCA 121
Hearing dates: 8 June 2016
Date of orders: 21 June 2016
Decision date: 21 June 2016
Before: Beazley P at [1]
Garling J at [2]
Fagan J at [72]
Decision:
Leave to appeal refused.

Catchwords: CRIMINAL LAW – appeal against sentence for supply of a prohibited drug – Drug (Misuse and Trafficking) Act 1985 s 25(1) – where offence committed while on conditional liberty – where sentence partially accumulated on balance of the parole period – whether sentencing Judge regarded the applicant’s commission of the offence while on parole as an aggravating factor – whether sentencing Judge erroneously ‘double counted’ the fact that the offence was committed while on parole
Legislation Cited: Criminal Appeal Act 1912
Drug (Misuse and Trafficking) Act 1985
Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194
Markarian v R [2005] HCA 25; (2006) 228 CLR 357
R v DW [2012] NSWCCA 66
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Steven James Batty (Applicant)
Crown
Representation:
Counsel:
R Rodger (Applicant)
V Lydiard (Crown)
Solicitors:
S E O’Connor – Legal Aid NSW (Applicant)
C Hyland – Solicitor for Public Prosecutions

File Number(s): 2014/181832
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 June 2015

Before:

Woods DCJ

File Number(s):

2014/181832

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Garling J. I agree with his Honour’s reasons and proposed order.
GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of NSW by his Honour Judge Woods QC on 10 June 2015.
The applicant, Steven James Batty, pleaded guilty in the Local Court to an offence contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act 1985 (“the DMT Act”) of supplying a prohibited drug on 18 June 2014. He was committed for sentence to the District Court. In the District Court he adhered to his plea of guilty.
The maximum penalty for the offence is imprisonment for 10 years. No standard non-parole period applies.
On 10 June 2015, the sentencing Judge imposed a sentence of 4 years imprisonment with a non-parole period of 2 years. The sentences were to take effect from 9 September 2015, being the date of the expiration of a term of imprisonment which the applicant was then serving.
On 19 June 2015, the matter was relisted before the sentencing Judge because of a need to correct the date upon which the sentence was fixed to commence. On that date the sentencing Judge imposed the same sentence, consisting of a 2 year non-parole period and a balance of term of 2 years, but ordered that the sentence commence on 19 March 2015.

Facts

A Statement of Agreed Facts was tendered to the sentencing Judge. The facts were as follows.
In mid-2014,…

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 Batty v The Queen

Details

AGLC: Batty v The Queen [2016] NSWCCA 121
Case: [2016] NSWCCA 121
Decision Date: 21 June 2016

CaseChat Overview and Summary

The applicant, Batty, appealed against his sentence for the supply of a prohibited drug in contravention of section 25(1) of the Drug (Misuse and Trafficking) Act 1985. The offence was committed while the applicant was on conditional liberty, and the sentencing judge imposed a sentence that was partially accumulated on the balance of the parole period. The central issue was whether the sentencing judge regarded the applicant’s commission of the offence while on parole as an aggravating factor, and if the judge erroneously 'double counted' this fact in the sentencing process.

The court examined the sentencing principles and the relevant statutory provisions to determine whether the sentencing judge had erred in his approach. The court noted that the sentencing judge had indeed considered the parole breach as an aggravating factor, which was permissible under the Act. However, the court found that the sentencing judge had not erroneously 'double counted' this factor by imposing a sentence that was partially accumulated on the balance of the parole period. The court held that the sentencing judge's approach was consistent with the statutory requirements and sentencing principles, and therefore, the sentence was not excessive or manifestly inadequate.

Accordingly, the appeal was dismissed. The court affirmed the sentence imposed by the sentencing judge and found no merit in the applicant's contention that the sentencing judge had erred in his approach. The court further held that the sentence was proportionate to the seriousness of the offence and took into account all relevant aggravating and mitigating factors. The applicant's appeal was thus unsuccessful, and the original sentence stood affirmed.

Orders