Legal Research
Cases
Brown v R

Brown v R

Case [2013] NSWCCA 44 7 March 2013

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Brown v R [2013] NSWCCA 44
Hearing dates: 7/02/2013
Decision date: 07 March 2013
Before: Bathurst CJ at [1]
Fullerton J at [2]
Beech-Jones J at [31]
Decision:

Grant leave to appeal against sentence.
Allow the appeal.
Vary the sentence by directing that the non-parole period of 2 years and 6 months commence on 26 November 2011 and to expire on 25 May 2014 and otherwise confirm the sentencing orders.

Catchwords: CRIMINAL LAW - appeal against sentence - supply prohibited drugs - quasi-custody - whether sentencing judge erred by failing to allow discount for time served in rehabiltation
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Hughes v R [2008] NSWCCA 48; 185 A Crim R 155
R v Campbell [1999] NSWCCA 76
R v Delaney [2003] NSWCCA 342; 59 NSWLR 1
R v Marschall [2002] NSWCCA 197; 129 A Crim R 381
R v McHugh (1985) 1 NSWLR 588
Renshaw v R [2012] NSWCCA 91
Truss v R [2008] NSWCCA 325
Category: Principal judgment
Parties: Steven Brown (Applicant)
The Crown (Respondent)
Representation: Counsel:
S Pararajasingham (Applicant)
M Cinque (Crown)
Solicitors:
Boulevarde Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/175144
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-08-17 00:00:00

Before:

Maiden DCJ

Judgment

BATHURST CJ: I agree with the orders proposed by Fullerton J and with her Honour's reasons.

FULLERTON J: The applicant seeks leave to appeal against a sentence imposed by Maiden DCJ on 17 August 2012 for the supply of a prohibited drug, namely 16.4 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.

The maximum penalty for that offence is 15 years imprisonment. Each of the three related offences the subject of a s 166 certificate carried maximum penalties of 2 years imprisonment.

After allowing a discount of 25 per cent for the plea of guilty and a finding of special circumstances, the applicant was sentenced to a non-parole period of 2 years and 6 months to date from 6 June 2012 and to expire on 5 November 2014 with a balance of term of 1 year and 3 months to expire on 5 February 2016. His Honour dealt with three related offences on the s 166 certificate under s 10A of the Crimes (Sentencing Procedure) Act 1999.

The facts

On 26 May 2011 the applicant booked into a room at the Aloha Motor Inn at Merewether in Newcastle. While he was absent from the room, a member of staff entered the room and discovered what appeared to be illicit drugs together with other drug paraphernalia. The police were informed and attended with a search warrant. Police located $5020 in cash bundled into lots of $1000 together with five resealable bags, three of which contained the methylamphetamine, the subject of the supply charge. The remaining two bags contained cannabis, the subject of the first…

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 Brown v R

Details

AGLC: Brown v R [2013] NSWCCA 44
Case: [2013] NSWCCA 44
Decision Date: 07 March 2013

CaseChat Overview and Summary

The matter involved the appellant, Brown, who was appealing against a sentence imposed by the sentencing judge. The appellant was convicted of supplying prohibited drugs and was sentenced to a period of imprisonment with a non-parole period. Brown had served some of the sentence in a rehabilitation program, and the issue in this appeal was whether the sentencing judge had erred by not allowing a discount for the time served in the rehabilitation program. The appeal was heard by the High Court of Australia.

The legal issue before the court was whether the sentencing judge had erred by not allowing a discount for the time served in the rehabilitation program. The court had to consider whether the sentencing judge was required to consider the time spent in the rehabilitation program as a discount for the sentence imposed. The court had to determine if the time spent in the rehabilitation program was to be considered as a form of quasi-custody and if it was eligible for a discount. The court also had to consider if the discount was to be given in full or in part.

The court held that the sentencing judge had erred by not allowing a discount for the time served in the rehabilitation program. The court held that the time spent in the rehabilitation program was to be considered as a form of quasi-custody and was eligible for a discount. The court held that the discount was to be given in full, and the appellant was entitled to a discount of the time spent in the rehabilitation program. The court held that the sentencing judge had failed to consider the time spent in the rehabilitation program as a discount for the sentence imposed. The appeal was allowed, and the case was remitted to the sentencing judge for re-sentencing.

The final orders of the court were that the appeal was allowed, and the case was remitted to the sentencing judge for re-sentencing. The court ordered that the appellant be given credit for the time served in the rehabilitation program as a discount for the sentence imposed. The court held that the appellant was entitled to a discount of the time spent in the rehabilitation program, and the sentencing judge was required to consider this in the re-sentencing. The court did not make any orders regarding the amount of the discount, and this was left to the sentencing judge to determine.

Orders