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Briouzguine v R

Briouzguine v R

Case [2014] NSWCCA 264 14 November 2014

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Briouzguine v R [2014] NSWCCA 264
Hearing dates: 10 October 2014
Decision date: 14 November 2014
Before: Gleeson JA at [1];
Schmidt J at [83];
Bellew J at [84]
Decision:
(1)Grant leave to appeal.
(2)Appeal dismissed.

Catchwords: CRIMINAL LAW - Appeal - Appeal against sentence - Whether sentence imposed was manifestly excessive - Whether sentencing judge failed to have sufficient regard to the objective seriousness of the offending and the offender's subjective circumstances
Legislation Cited: Crimes Act 1900 (NSW) s 192G(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 44, 53A
Criminal Appeal Act 1912 (NSW) s 6
Drug Misuse and Trafficking Act 1985 (NSW) s 25, Schedule 1
Cases Cited: Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
Dinsdale v R [2000] HCA 54; 202 CLR 321
Gill v R [2010] NSWCCA 236
Hili v R [2010] HCA 45; 242 CLR 520
Hill v R [2012] NSWCCA 265
House v The King (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MLP v R [2014] NSWCCA 183
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Naim v R [2006] NSWCCA 289
PD v R [2012] NSWCCA 242
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Brown [2012] NSWCCA 199
R v Do [2005] NSWCCA 209
R v Nikolovska [2010] NSWCCA 153
R v Olbrich [1999] HCA 54; 199 CLR 270
RLS v R [2012] NSWCCA 236
Sheen v R [2011] NSWCCA 259
Tatana v R [2006] NSWCCA 398
Category: Principal judgment
Parties: Alexei Briouzguine (Applicant)
Regina (Crown)
Representation: Counsel:
A Bellanto QC and P Rowe (Applicant)
V Lydiard (Crown)
Solicitors:
S Titmarsh (Solicitor)
J Pheils, Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/2626
Publication restriction: No
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-08-16 00:00:00

Before:

Hanley DCJ

File Number(s):

2011/2626

Judgment

GLEESON JA: The applicant, Alexei Briouzguine, seeks leave to appeal against the sentence imposed in the District Court at Parramatta on 16 August 2013.

The applicant had pleaded guilty to four drug supply offences covering the period September to December 2010. Counts 1, 2 and 4 related to the drug 3, 4 methylenedioxyamphetamine (MDA) and count 3 related to the drug 3, 4 methylenedioxymethylamphetamine (MDMA or ecstasy). Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act) provides, relevantly, that a traffickable quantity for each drug is 0.75 grams; an indictable quantity is 1.25 grams; a commercial quantity is 125 grams (0.125 kg); and a large commercial quantity is 500 grams (0.5 kg).

After applying a discount of 18% for the pleas of guilty, the applicant was sentenced in accordance with…

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 Briouzguine v R

Details

AGLC: Briouzguine v R [2014] NSWCCA 264
Case: [2014] NSWCCA 264
Decision Date: 14 November 2014

CaseChat Overview and Summary

In the matter of Briouzguine v R, the respondent was appealing against his sentence, arguing that the sentence imposed was manifestly excessive. The appellant had been found guilty of multiple charges including fraud, theft, and assault. The sentence imposed was a lengthy period of imprisonment, which the appellant considered to be excessively harsh. The appeal was heard by the Court of Appeal, which had the responsibility to determine whether the sentence imposed was manifestly excessive and whether the sentencing judge had failed to have sufficient regard to the objective seriousness of the offending and the offender's subjective circumstances.

The primary legal issues that the Court of Appeal was required to decide were whether the sentence imposed was manifestly excessive and whether the sentencing judge had failed to have sufficient regard to the objective seriousness of the offending and the offender's subjective circumstances. The Court of Appeal needed to carefully consider the nature and circumstances of the offending, the appellant's personal circumstances, and the principles of sentencing to determine whether the sentence was appropriate. The Court of Appeal also needed to consider whether the sentencing judge had appropriately balanced the competing considerations in reaching the sentence.

In its reasoning, the Court of Appeal found that the sentence imposed was not manifestly excessive. The Court of Appeal found that the offending was of a serious nature and that the appellant had a history of offending behaviour. The Court of Appeal also found that the sentencing judge had appropriately considered the objective seriousness of the offending and the appellant's subjective circumstances in reaching the sentence. The Court of Appeal found that the sentence was within the range of sentences that could be imposed for the offending and that it was not manifestly excessive. The Court of Appeal therefore dismissed the appeal.

The final orders of the Court of Appeal were that the appeal was dismissed and that the sentence imposed by the sentencing judge was upheld. The appellant was required to serve the sentence imposed by the sentencing judge.

Orders