Bott v R

Case [2023] NSWCCA 255


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Bott v R [2023] NSWCCA 255
Hearing dates: 2 August 2023
Date of orders: 11 October 2023
Decision date: 11 October 2023
Before: Beech-Jones CJ at CL at [1]
Fagan J at [2]
Dhanji J at [11]
Decision:

(1)      Grant leave to appeal.

(2)      The sentences imposed in the District Court on 6 April 2022 for the offences of knowingly take part in the supply of methylamphetamine and possession of methylamphetamine are confirmed.

(3)       The sentence imposed in the District Court on 6 April 2022 for the offence of attempting to possess a commercial quantity of a border controlled drug is quashed and in lieu thereof the applicant is sentenced to imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months to date from 16 February 2022.

(4)       The applicant will become eligible for release to parole on 15 August 2026.

Catchwords:

CRIME – appeals – appeal against sentence – whether failure to find or take into account unchallenged expert evidence of offending behaviour and pre-existing co-morbid mental disorders – GBL offence – whether sentence imposed is manifestly excessive

Legislation Cited:

Crimes (Administration of Sentences) Regulation 2014 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Code (Cth)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

AB v R [2013] NSWCCA 160

Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15

Arnaout v R (2008) 191 A Crim R 149; [2008] NSWCCA 278

Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150

Decision Restricted [2019] NSWCCA 102

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Director of Public Prosecutions (Cth) v Maxwell (2013) 228 A Crim R 218; [2013] VSCA 50

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

McMahon v R [2011] NSWCCA 147

Melikan v R [2008] NSWCCA 156

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29

Petkos v R [2020] NSWCCA 55

Ruvinovski v The Queen (2000) 116 A Crim R 131

R v Abdelrahman Masri (District Court (NSW), Yehia SC DCJ, 12 March 2020, unrep)

R v Colledge (District Court (NSW), Hosking SC DCJ, 20 April 2010, unrep)

R v Darwell (1997) 94 A Crim R 35

R v Engert (1995) 84 A Crim R 67

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA

R v McDonald (2002) 128 A Crim R 44; [2002] NSWCCA 34

R v Phelps (District Court (NSW), Ellis DCJ, 5 September 2014, unrep)

R v Sopronick (District Court…

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AGLC
Bott v R [2023] NSWCCA 255
Case
[2023] NSWCCA 255
Decision Date

CaseChat Overview and Summary

The appellant, Bott, was convicted of an offence involving the use of GBL and appeals against the sentence imposed by the court. Bott's appeal focused on the sentence being manifestly excessive and the trial judge's failure to find or take into account unchallenged expert evidence regarding the appellant's offending behaviour and pre-existing co-morbid mental disorders. The Crown accepted that the sentence was excessive but argued that the sentence should be upheld. The Court of Appeal examined the sentence's severity and the trial judge's handling of the expert evidence in this case.

The court needed to determine whether the sentence imposed on Bott was manifestly excessive and whether the trial judge erred by failing to take into account the unchallenged expert evidence. The court also had to consider whether these errors warranted a reduction in the sentence. The Crown conceded that the sentence was excessive but argued that the sentence should remain unchanged. The central issue was whether the trial judge's failure to consider the expert evidence constituted a significant error that warranted a reduction in the sentence.

The Court of Appeal found that the trial judge did not consider the unchallenged expert evidence of the appellant's offending behaviour and pre-existing co-morbid mental disorders. The court held that this constituted a significant error, which warranted a reduction in the sentence. The court found that the sentence imposed was manifestly excessive and ordered a reduction of the sentence to an appropriate level. The Court of Appeal held that the sentence was manifestly excessive and that the trial judge's failure to consider the unchallenged expert evidence was a significant error warranting a reduction in the sentence. The court ordered a reduction of the sentence to an appropriate level.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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