Legal Research
Cases
Bobbin v The Queen

Bobbin v The Queen

Case [2016] NSWCCA 38 11 March 2016

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bobbin v R [2016] NSWCCA 38
Hearing dates: 8 February 2016
Date of orders: 11 March 2016
Decision date: 11 March 2016
Before: Johnson J at [1]
Schmidt J at [2]
Wilson J at [3]
Decision:
1. The time for filing an application for leave to appeal against sentence is extended.
2. Leave to appeal is refused.

Catchwords: CRIMINAL LAW – sentence appeal – offences of supply prohibited drug and ongoing supply - whether an extension of time to seek leave to appeal should be granted – whether sentencing judge failed to apply the principle of totality – whether sentence is manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Franklin v R [2013] NSWCCA 122
House v The King [1936] HCA 40; (1936) 55 CLR 499
LG v R [2012] NSWCCA 249
Mato v R; Rusu v R [2015] NSWCCA 328
MMK v R [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321
R v Hammoud [2000] NCWCCA 540; (2000) 118 A Crim R 66
R v Pearce [1998] HCA 57; (1998) 194 CLR 610
Texts Cited: American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Edition 5
Category: Principal judgment
Parties: Brendon Charles Bobbin (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr L Fermandez (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Kennedy & Cooke Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/255154
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 September 2014

Before:

McLoughlin SC DCJ

File Number(s):

2013/255154

Judgment

JOHNSON J: I agree with Wilson J.
SCHMIDT J: I agree with Wilson J.
WILSON J: Brendon Charles Bobbin (the applicant) seeks leave to appeal against the sentences imposed upon him by his Honour Judge McLoughlin SC, sitting in the District Court at Sydney, on 26 September 2014. Sentences were imposed for two offences, being one count of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug (amphetamine), and one count of ongoing supply of a prohibited drug (amphetamine). The former is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum penalty of 20 years imprisonment; a standard non parole period (“SNPP”) of 10 years attaches to that offence. The latter offence is contrary to s 25A(1) of the same Act and carries a maximum penalty of 20 years imprisonment.
With respect to the first of the offences, to which the applicant entered a plea of guilty on indictment before the District Court, the applicant was sentenced to a term of 3 years and 9 months imprisonment, commencing on 22 August 2013, and expiring on 21 May…

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 Bobbin v The Queen

Details

AGLC: Bobbin v The Queen [2016] NSWCCA 38
Case: [2016] NSWCCA 38
Decision Date: 11 March 2016

CaseChat Overview and Summary

The appellant, Bobbin, was convicted of offences related to the supply of a prohibited drug and ongoing supply, and he sought to appeal the sentence imposed by the sentencing judge. The appeal to the court was primarily focused on the sentence, arguing that the sentencing judge had failed to consider the principle of totality, which mandates that the total sentence should not exceed the sum of the individual sentences for each offence. Bobbin also argued that the sentence was manifestly excessive. The respondent, The Queen, opposed the appeal, contending that the sentence was within the appropriate range and that no extension of time to seek leave to appeal should be granted.

The court was required to determine whether an extension of time to seek leave to appeal should be granted, whether the sentencing judge failed to apply the principle of totality, and whether the sentence was manifestly excessive. The court had to examine the principles of sentencing and the application of the principle of totality, which ensures that the cumulative effect of multiple sentences does not result in an unduly harsh punishment. The court also needed to assess if the sentence imposed was manifestly excessive in light of the circumstances of the case and the gravity of the offences.

In considering the application for an extension of time to seek leave to appeal, the court noted that the appellant had not demonstrated any exceptional circumstances that warranted such an extension. Regarding the principle of totality, the court found that the sentencing judge had not failed to apply it, as the total sentence did not exceed the sum of the individual sentences for each offence. The court also concluded that the sentence was not manifestly excessive, as it was within the appropriate range for the offences committed. Therefore, the appeal against the sentence was dismissed.

The court did not make any further orders beyond dismissing the appeal against the sentence. The sentence imposed by the sentencing judge remained in effect, and the appellant's appeal was rejected on all grounds.

Orders