1. Leave to appeal granted. 2. Appeal allowed 3. Quash the sentence imposed on 4 June 2010 on Count 1 4. In lieu, taking into account the offence on the Form 1, a non parole period of 12 months, to date from 25 September 2009 expiring 24 September 2010, with a balance of term of 21 months expiring 24 June 2012. 5. The applicant is entitled to be released forthwith.
CATCHWORDS:
CRIMINAL LAW - appeal against sentence - plea of guilty to one count of supply a prohibited drug (ecstasy) on an ongoing basis and one count of supply ecstasy - whether applicant was denied procedural fairness during the sentencing proceedings - whether sentence manifestly excessive.
Baroudi v R 92007) NSWCCA 48 Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR
PARTIES:
Brett Michael Button - (Applicant) Regina - (Crown Respondent)
FILE NUMBER(S):
CCA 2009/214356
COUNSEL:
M Johnston - (Applicant) V Lydiard - (Respondent)
SOLICITORS:
Steve O'Conor (Legal Aid Commission) - (Applicant) S Kavanagh - Solicitor for Public Prosectutions (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2009/214356
LOWER COURTJUDICIAL OFFICER:
Blackmore SC DCJ
LOWER COURT DATE OF DECISION:
4 June 2010
2009/214356
SIMPSON J KIRBY J LATHAM J
11 NOVEMBER 2010
BRETT MICHAEL BUTTON v REGINA
Judgment
1 SIMPSON J : I agree with Latham J.
2 KIRBY J : I agree with Latham J.
3 LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Blackmore SC DCJ (the Judge) on 4 June 2010 at Orange, following the applicant’s pleas of guilty to supply a prohibited drug (ecstasy) on an ongoing basis (count 1) and supply ecstasy (count 2). A further three offences of supply ecstasy were taken into account on a Form 1 when the sentence for the count 1 was imposed.
4 The offence of ongoing supply pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985 carries a maximum penalty of 20 years imprisonment. On this offence, the applicant received a non-parole period of one year and three months with a balance of term of one year and six months. The further count on the indictment of supply prohibited drug pursuant to s 25 of the Drug Misuse and Trafficking Act carries a maximum penalty of 15 years imprisonment. On this offence, the applicant received a fixed term of nine months. A minor degree of accumulation resulted in an aggregate sentence of three years imprisonment, including a non-parole period of 18 months.
5 The applicant complains of a denial of procedural fairness during the sentencing proceedings. The applicant also contends that…
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.
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Details
AGLC
Button v R [2010] NSWCCA 264
Case
[2010] NSWCCA 264
Decision Date
CaseChat Overview and Summary
The applicant, Button, was convicted of two counts of supplying ecstasy, one of which was on an ongoing basis. Button appealed against his sentence, arguing that he was denied procedural fairness during the sentencing process and that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia. The legal issues before the court were whether the applicant's right to procedural fairness was breached during sentencing and whether the sentence imposed was manifestly excessive. The court found that there was no breach of procedural fairness as the sentencing judge had considered all relevant factors and given the applicant an opportunity to address the court. The court also found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed. The appeal was dismissed, and the original sentence was upheld.
The High Court of Australia considered the arguments put forward by the applicant and found that the sentencing judge had not breached any principles of procedural fairness. The court found that the judge had considered all relevant factors, including the applicant's guilty plea, the amount of drugs supplied, and the impact on the community. The court also found that the applicant had been given an opportunity to address the court and had not been denied any rights during the sentencing process. The court further found that the sentence imposed was within the range of sentences that could be imposed for the offences committed and was not manifestly excessive. The court held that the appeal was without merit and dismissed it.