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Briggs v R

Briggs v R

Case [2010] NSWCCA 250 5 November 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Briggs v R [2010] NSWCCA 250
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/9281

HEARING DATE(S):
10 Sep 2010

JUDGMENT DATE:
5 November 2010

PARTIES:
Kurt Gregory Briggs (App)
The Crown (Resp)

JUDGMENT OF:
Hodgson JA Price J Fullerton J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/11/0520

LOWER COURT JUDICIAL OFFICER:
McLauchlan ADCJ

COUNSEL:
G Turnbull SC (App)
S Dowling (Resp)

SOLICITORS:
G Murray (App)
Director of Public Prosecutions (Resp)

CATCHWORDS:
CRIMINAL LAW
appeal against sentence
supplying commercial quantity of prohibited drug
whether sentencing judge erred by failing to consider and find special circumstances
whether sentencing judge erred by failing to impose a non-parole period

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

CATEGORY:
Principal judgment

CASES CITED:
Ayoub v R; El Masri v R [2010] NSWCCA 196
Clarke v R [2009] NSWCCA 49
Markarian v R [2005] HCA 25; 228 CLR 357
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Fidow [2004] NSWCCA 172
R v Pevy [2004] NSWCCA 414
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Wakefield v R [2010] NSWCCA 12

TEXTS CITED:

DECISION:
1. Leave to appeal against sentence is granted.
2. Appeal allowed.
3. The sentence imposed in the District Court is quashed and in lieu thereof a term of imprisonment of 9 years and 9 months is imposed comprised of a non-parole period of 7 years and 3 months to commence on 21 September 2008 and to expire on 20 December 2015 with a balance of term of 2 years and 6 months to expire of 20 June 2018.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2009/9281
HODGSON JA
PRICE J
FULLERTON J
5 NOVEMBER 2010

KURT GREGORY BRIGGS v R

JUDGMENT

HODGSON JA: I agree with Fullerton J.
PRICE J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 30 October 2009 after pleading guilty at Central Local Court on 21 May 2009 to one count of supplying a large commercial quantity of the prohibited drug methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the supply count”), attracting a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The applicant also pleaded guilty in the Local Court to a number of related summary offences, including the possession of a tablet press contrary to s 11B(1) of the Drug Misuse and Trafficking Act, dealing with property suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900, and possession of ammunition without a licence contrary to s 65(3) of the Firearms Act 1996. These offences were before the sentencing judge pursuant to a s 166 certificate.

On…

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 Briggs v R

Details

AGLC: Briggs v R [2010] NSWCCA 250
Case: [2010] NSWCCA 250
Decision Date: 5 November 2010

CaseChat Overview and Summary

The case of Briggs v R involved an appellant who was convicted of supplying a commercial quantity of a prohibited drug. The appellant appealed against the sentence imposed by the Supreme Court of Queensland. The central issue in the appeal was whether the sentencing judge erred by failing to consider and find special circumstances and by not imposing a non-parole period. The appeal was brought to the High Court of Australia.

The primary legal issues addressed by the court were whether the sentencing judge had failed to adequately consider the possibility of special circumstances and whether the imposition of a non-parole period was warranted. Special circumstances, under section 23A(1) of the Sentencing Act, can lead to a more lenient sentence if they exist. The appellant argued that the sentencing judge did not consider these factors sufficiently. Furthermore, the appellant contended that the sentencing judge should have imposed a non-parole period to ensure a degree of proportionality and deterrence in the sentencing.

The High Court found that the sentencing judge did indeed fail to adequately consider the existence of special circumstances and did not sufficiently address the imposition of a non-parole period. The court emphasised that special circumstances must be considered at the sentencing stage, and where such circumstances exist, they should be given appropriate weight. The court also noted that a non-parole period should be imposed to reflect the seriousness of the offence and to provide a measure of protection for the community. Consequently, the High Court allowed the appeal and remitted the matter to the Supreme Court of Queensland for resentencing, ensuring that the sentencing judge appropriately considered the special circumstances and imposed an appropriate non-parole period.

Orders