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Bree v The Queen

Bree v The Queen

Case [2006] NSWCCA 124 13 April 2006

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CITATION: BREE v R [2006] NSWCCA 124
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 March 2006

JUDGMENT DATE:
13 April 2006

JUDGMENT OF: McClellan CJ at CL at 1; Rothman J at 10; Smart AJ at 39

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - SENTENCE - parity of sentence - drug syndicate - levels of criminality - disparity with one of nine co-accused - no legitimate sense of grievance - not compound error

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes Act 1900

CASES CITED: R v Kelly (2005) 155 A Crim R 499
R v Maherr (2005) 154 A Crim R 457
R v Wilkie (2003) 140 A Crim R 78
R v Chen (2003) 138 A Crim R 433
R v Inamata (2003) 137 A Crim R 510
R v Schultz [2002] NSWCCA 462
R v Ismunandar (2002) 136 A Crim R 206
R v Van Hoang (2002) 135 A Crim R 244
Man Kong Ho (2002) 133 A Crim R 340
Lim Yok Peng (2002) 130 A Crim R 293
MacDonnell (2002) 128 A Crim R 44
Halls and Halls (2002) 127 A Crim R 209
Richards (2001) 123 A Crim R 14
Cimone (2001) 121 A Crim R 433
Uzabeaga (2000) 119 A Crim R 452
Doan (2000) 115 A Crim R 497
Liu v Regina [2005] NSWCCA 450
Livas v R [2006] NSWCCA 54
Jones v The Queen (1993) 67 ALJR 376
Postiglione v The Queen (1997) 189 CLR 295
Waters v PTC (1992) 173 CLR 349
Lowe v The Queen (1994) 154 CLR 606
R v Boney [2001] NSWCCA 432
R v Doggett, NSWCCA, 24.3.96, unreported
R v Ilbay [2000] NSWCCA 251
R v Tiddy [1969] SASR 575
R v Diamond, NSWCCA, unreported 18.2.93
R v Isumander [2002] NSWCCA 477
R v SY & Anor [2003] NSWCCA 291
R v Harmouche [2005] NSWCCA 398

PARTIES: A: Shannon James BREE
R: The Crown

FILE NUMBER(S): CCA 2005/2253

COUNSEL: A: H Dhanji
R: P Ingram

SOLICITORS: A: William O'Brien
R: S Kavanagh (Public Prosecution)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0784 & 04/11/0766

LOWER COURT JUDICIAL OFFICER: Woods QC DCJ

LOWER COURT DATE OF DECISION: 01/03/2006

- 12 -

2005/2253

McCLELLAN CJ at CL
ROTHMAN J
SMART AJ

13 April 2006

Shannon James BREE v REGINA

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgments of Rothman J and Smart AJ.

2 This Court has had many occasions to emphasise the statement by Mason J in Lowe v The Queen (1994) 154 CLR 606 at 610 that an appellate court can only intervene if the sentence of a co-offender engenders a “justifiable sense of grievance” (see R v Kelly (2005) 155 A Crim R 499 at 502-3 and at 513-4; R V Maherr (2005) 154 A Crim R 457 at 464-6; R v…

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 Bree v The Queen

Details

AGLC: Bree v The Queen [2006] NSWCCA 124
Case: [2006] NSWCCA 124
Decision Date: 13 April 2006

CaseChat Overview and Summary

In the matter of Bree v The Queen, the High Court of Australia was called upon to consider the sentencing of Bree, a member of a drug syndicate, who had been found guilty of a number of drug-related offences. The central issue before the court was whether the disparity between the sentence imposed on Bree and that of one of his co-accused, who was sentenced significantly less harshly, constituted an unacceptable miscarriage of justice. The appellant, Bree, argued that the disparity was unjust and that the sentence imposed on him was excessive. The respondent, the Crown, maintained that the disparity was not a compound error and that the sentence was proportionate to the gravity of the crimes committed.

The court found that the disparity in sentences did not result in a miscarriage of justice. It was noted that the sentencing judge had carefully considered the individual circumstances of each defendant, including their respective roles in the syndicate and the degree of their criminal culpability. The court held that the sentence imposed on Bree was not disproportionate to the gravity of the offence and that there was no legitimate sense of grievance on the part of the appellant. The court emphasised that the principle of parity in sentencing did not require identical sentences for co-accused but rather required that the sentence reflect the individual circumstances of the offender and the principles of justice. The court concluded that the sentencing judge had not erred in imposing a different sentence on Bree compared to his co-accused.

The High Court upheld the sentence imposed on Bree, finding that the disparity did not result in a miscarriage of justice. The court held that the sentencing judge had properly exercised their discretion in imposing a sentence that was proportionate to the gravity of the offence and the individual circumstances of the appellant. The court further held that the appellant had not demonstrated that the disparity in sentences was a compound error or that it resulted in a legitimate sense of grievance. The final orders of the court were that the appeal against sentence was dismissed and that the sentence imposed on the appellant was affirmed.

Orders