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Biermann v The Queen

Biermann v The Queen

Case [2009] NSWCCA 165 19 June 2009

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New South Wales
Court of Criminal Appeal

CITATION: BIERMANN v R [2009] NSWCCA 165

HEARING DATE(S): 4 June 2009

JUDGMENT DATE:
19 June 2009

JUDGMENT OF: Campbell JA at 1; Latham J at 2; Harrison J at 34

DECISION: 1. Leave to appeal granted
2. Appeals against sentence dismissed

CATCHWORDS: CRIMINAL LAW - appeal against sentence - supply commercial quantity MDMA and four counts of supply prohibited drug - whether individual sentences and aggregate sentence manifestly excessive - no question of principle.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: Mitchell v R [2008] NSWCCA 192 at [12]
R v MacDonnell [2002] NSWCCA 34
R v Hejazi [2003] NSWCCA 383
R v Wheeler [2000] NSWCCA 34
R v Jordan [2002] NSWCCA 228
R v Harmouche 158 A Crim R 357 ; [2005] NSWCCA 398
R v Dang [2005] NSWCCA 430
Stevens v Regina [2007] NSWCCA 252
R v Franklin NSWCCA 11 April 1997
R v Thompson & Falconer [1999] NSWCCA 50
R v Loh [2002] NSWCCA 23
R v Shi [2004] NSWCCA 135
R v Emanuel [2004] NSWCCA 267
R v Attard [2004] NSWCCA 376
Hutton v R [2008] NSWCCA 99
R v Stankovic [2006] NSWCCA 229
R v Sciberras (2006) 165 A Crim R 532 ; [2006] NSWCCA 268
R v Henry (1999) 46 NSWLR 346
House v The King [1936] HCA 40 ; (1936) 55 CLR 499

PARTIES: Benjamin Luke Biermann - Applicant
Regina - Crown respondent

FILE NUMBER(S): CCA 2007/15646

COUNSEL: Stephen J Stanton - Applicant
V Lydiard - Crown respondent

SOLICITORS: Jonathon Hassett - Applicant
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0865

LOWER COURT JUDICIAL OFFICER: Woods QC DCJ

LOWER COURT DATE OF DECISION: 2 May 2008

2007/15646

CAMPBELL JA
LATHAM J
HARRISON J
19 JUNE 2009

BENJAMIN LUKE BIERMANN v REGINA

Judgment

1 CAMPBELL JA : I agree with Latham J.

2 LATHAM J : The applicant, Benjamin Biermann, seeks leave to appeal against the sentences imposed upon him by GD Woods QC DCJ (the Judge) on 2 May 2008. The application for leave to appeal is out of time. The Crown does not oppose the grant of leave in the circumstances of this case.

3 The applicant pleaded guilty in the Local Court to five counts of supply a prohibited drug pursuant to s 25 of the Drug Misuse and Trafficking Act 1985. Four of those offences carried a maximum penalty of 15 years imprisonment, while the remaining offence, constituted by the supply of not less than the commercial quantity of MDMA, carried a maximum penalty of 20 years imprisonment and attracted a standard non-parole period of 10 years imprisonment. Three further offences, namely goods in custody, possess prohibited drug and supply prohibited drug, were taken into account on a Form One when the applicant came to be sentenced for the most serious of the five offences.

4 On each of three supply prohibited drug charges (methylamphetamine, ketamine and crystalline methylamphetamine), carrying…

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 Biermann v The Queen

Details

AGLC: Biermann v The Queen [2009] NSWCCA 165
Case: [2009] NSWCCA 165
Decision Date: 19 June 2009

CaseChat Overview and Summary

The parties involved in this appeal are the respondent, The Queen, and the appellant, Biermann. The nature of the dispute is an appeal against the appellant's sentence for supplying a commercial quantity of MDMA and four counts of supplying a prohibited drug. The court in which this appeal was heard was the High Court of Australia. The legal issues that the court was required to decide were whether the individual sentences imposed and the aggregate sentence were manifestly excessive.

The court's reasoning and outcome were based on the principle that there was no question of principle in this case. The court found that the trial judge had taken into account all relevant factors and had exercised his discretion in a manner that was not manifestly excessive. The court also found that the appellant had not demonstrated that the sentence was so excessive as to shock the conscience of the court. Therefore, the appeal against sentence was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the trial judge was upheld. The court did not make any orders regarding the conviction, and the appellant remained convicted of the offences for which he was sentenced. The court also did not make any orders regarding the costs of the appeal.

Orders