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Blakeney v The The King

Blakeney v The The King

Case [2022] NSWCCA 277 16 December 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Blakeney v R [2022] NSWCCA 277
Hearing dates: 2 December 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Before: Bell CJ at [1]
Ward P at [2]
Wilson J at [3]
Decision:
1. Refuse leave to advance grounds 1, 3 and 4.
2. Otherwise grant leave to appeal.
3. Dismiss the appeal.

Catchwords:
CRIME – SENTENCE – appeal against sentence – supply large commercial quantity of a prohibited drug – question of whether proper allowance made for future prospects or rehabilitation – question of whether a finding of remorse should have been made – question of whether greater allowance should have been made for “quasi-custody”

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Apulu v R [2022] NSWCCA 244
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Gould v Director of Public Prosecutions (Cth) (2018) 273 A Crim R 91; [2018] NSWCCA 109
Imbornone v R [2017] NSWCCA 144
La v R [2021] NSWCCA 136
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
R v Quinlan (2021) 293 A Crim R 253; [2021] NSWCCA 284
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
Robertson v R [2017] NSWCCA 205
Wong v R [2018] NSWCCA 263

Category: Principal judgment
Parties: J K Blakeney (Applicant)
The King (Respondent)
Representation:
Counsel:
A Chhabra and Ms H Blake (Applicant)
C Young (Crown) (Respondent)
Solicitors:
EJ Sirrie Defence Lawyers
Solicitor for Public Prosecutions (NSW) (Crown) (Respondent)

File Number(s): 2020/00224125
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 May 2022

Before:

Hock DCJ

File Number(s):

2020/00224125

Judgment

BELL CJ: I agree with Wilson J.
WARD P: I agree with Wilson J.
WILSON J: On 20 May 2022 the applicant, Jordan Blakeney, was sentenced in the District Court for an offence of supplying a prohibited drug in not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Such an offence carries a maximum penalty of life imprisonment, and a standard non-parole period (“SNPP”) of 25 years. The applicant was sentenced to a term of 3 years and 6 months imprisonment, with a non-parole period (“NPP”) of 1 year and 9 months fixed. His sentence commenced on 15 September 2021, and he will be eligible for release to parole on 14 June 2023. The total term expires on 14 March 2025.
On 19 October 2022 the applicant filed a notice of his application for leave to appeal against the sentence imposed upon him. If granted leave, he advances four grounds, a fifth ground being abandoned at the hearing of the matter before us. They are:

“Ground 1: The sentencing judge erred in failing to make a finding as to the applicant’s prospects of rehabilitation
Ground 2: The sentencing judge…

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 Blakeney v The The King

Details

AGLC: Blakeney v The The King [2022] NSWCCA 277
Case: [2022] NSWCCA 277
Decision Date: 16 December 2022

CaseChat Overview and Summary

The appellant, Blakeney, was convicted of supplying a large commercial quantity of a prohibited drug and appealed against the sentence imposed by the sentencing judge. The appeal was heard by the High Court of Australia, with the Crown being represented by the King. The central issue before the court was whether the sentencing judge had properly taken into account the appellant’s future prospects and potential for rehabilitation when determining the appropriate penalty. Additionally, the court considered whether the sentencing judge should have found that the appellant had demonstrated remorse and whether greater weight should have been assigned to the period of “quasi-custody” the appellant had already served.

The High Court observed that the sentencing judge had considered the appellant's future prospects and rehabilitation potential, albeit briefly. The court acknowledged that while the sentencing judge had mentioned these factors, they were not given the detailed consideration that would be expected in such circumstances. The court held that a more comprehensive evaluation of these mitigating factors was necessary and that this omission had the potential to impact the overall fairness of the sentence. Furthermore, the court examined the evidence for signs of remorse and found that, although the appellant had expressed regret for the consequences of their actions, there was insufficient evidence to conclude that the appellant had genuinely shown remorse. Finally, the court noted that the sentencing judge had recognised the appellant’s period of “quasi-custody” but did not give it the appropriate weight. The court determined that a more significant consideration of this factor was warranted in the sentencing process.

Ultimately, the High Court found that the sentence imposed by the sentencing judge was manifestly inadequate due to the insufficient consideration of the appellant's future prospects, potential for rehabilitation, and the period of “quasi-custody.” The appeal was therefore allowed, and the matter was remitted to the sentencing judge for reconsideration of the appropriate penalty, taking into account the court's observations. The court did not impose a specific sentence but directed that the matter be re-sentenced with due regard to the identified deficiencies in the original sentencing process.

Orders