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Bowden v R

Bowden v R

Case [2009] NSWCCA 45 27 February 2009

Appeal

Sentencing

Aggravated & Exemplary Damages

Criminal Liability

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: BOWDEN v REGINA [2009] NSWCCA 45

HEARING DATE(S): Wednesday 19 November 2008

JUDGMENT DATE:
27 February 2009

JUDGMENT OF: Beazley JA at 1; Kirby J at 2; Hall J at 3

DECISION: (1) Leave to appeal be granted.
(2) The appeal be upheld.
(3) The sentences imposed in respect of Count 2, ongoing supply of prohibited drug (methylamphetamine) contrary to s.25A(1) of the Drug Misuse and Trafficking Act be set aside and the applicant be re-sentenced by this Court.
(4) That in respect of Count 2, the applicant be sentenced to a non-parole period of one year to commence on 27 February 2008 and to expire on 26 February 2009 with a balance of term of one year and six months to commence on 27 February 2009 and to expire on 26 August 2010.
(5) Pursuant to s.50(1) of the Crimes (Sentencing Procedure) Act, an order directing the release of the applicant on parole at the end of the non-parole period specified in order (4) above, namely, 26 February 2009.
In accordance with the order proposed in paragraph [5) above, the applicant is to be released to parole forthwith.

CATCHWORDS: CRIMINAL LAW – appeal against severity of sentence – plea of guilty to two counts of supplying a prohibited drug and one count of ongoing supply of prohibited drug – grounds for interference – parity – whether error in lack of disparity between sentences of co-offenders – where significant disparity in circumstances of co-offenders – whether error in finding offence committed for financial gain was aggravating factor – where financial gain element of offence – whether error in finding offences aggravated by being part of planned or organised criminal activity – where no planning or organisation established beyond what is inherent to offence – errors established – appeal allowed and upheld – sentences set aside – applicant re-sentenced

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Police Power (Drug Premises) Act 2001

CATEGORY: Principal judgment

CASES CITED: Fahs v Regina [2007] NSWCCA 26
Frigiani v Regina [2007] NSWCCA 81
Elyard v Regina [2006] NSWCCA 43
Lovelock v The Queen (1978) 33 FLR 132
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
Regina v Johnson [2005] NSWCCA 186
Regina v Wickham [2004] NSWCCA 193
Regina v Yildiz [2006] NSWCCA 97

PARTIES: Stacey BOWDEN
v REGINA

FILE NUMBER(S): CCA No 2006/13051

COUNSEL: Crown: V Lydiard
App: H Cox

SOLICITORS: Crown: S Kavanagh
App: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/1149

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 27 February 2008

No 2006/13051

BEAZLEY JA
KIRBY J
HALL J
FRIDAY 27 FEBRUARY 2009

STACEY BOWDEN v REGINA

Judgment

1 BEAZLEY JA: I agree with Hall J.

2 KIRBY J: I agree with Hall J.

3 HALL J: The applicant seeks leave to appeal pursuant to s.5(1)(c)…

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 Bowden v R

Details

AGLC: Bowden v R [2009] NSWCCA 45
Case: [2009] NSWCCA 45
Decision Date: 27 February 2009

CaseChat Overview and Summary

Bowden appealed against the severity of his sentence following a guilty plea to two counts of supplying a prohibited drug and one count of ongoing supply of a prohibited drug. The appeal focused on the disparity between the sentences handed down to Bowden and his co-offenders, as well as the characterisation of certain factors as aggravating elements. Bowden argued that the disparity between his sentence and that of his co-offenders was unjust, and that the sentencing judge erred in considering the financial gain element of the offence and the planning or organisation of the crime as aggravating factors. Bowden contended that these factors were inherent to the offence and did not warrant additional punishment.

The court was required to determine whether there was an error in the lack of disparity between the sentences of the co-offenders, and whether there was an error in characterising certain factors as aggravating elements. The court considered the significant differences in the circumstances of the co-offenders, and whether the sentencing judge erred in finding the financial gain element of the offence and the planning or organisation of the crime as aggravating factors. The court also examined whether these factors were inherent to the offence and did not warrant additional punishment.

The court found that there was an error in the lack of disparity between the sentences of the co-offenders, as well as errors in characterising certain factors as aggravating elements. The court held that the significant differences in the circumstances of the co-offenders warranted a greater disparity in their sentences. Additionally, the court found that the financial gain element of the offence and the planning or organisation of the crime were inherent to the offence and did not warrant additional punishment. Consequently, the appeal was allowed, and the sentences were set aside. Bowden was re-sentenced.

The final orders of the court were that the appeal was allowed, the sentences set aside, and Bowden re-sentenced. The court recognised the errors in the sentencing process and sought to rectify the disparities and characterisations of aggravating factors. The re-sentencing aimed to ensure a more just and proportionate outcome for Bowden, taking into account the significant differences in the circumstances of the co-offenders and the inherent nature of certain factors of the offence.

Orders