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)
R v Phelps (District Court (NSW), Ellis DCJ, 5 September 2014, unrep)
R v Sopronick (District Court…
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.
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Details
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.