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Buttrose v R

Buttrose v R

Case [2011] NSWCCA 35 10 March 2011

Appeal

Sentencing

Criminal Liability

Discount for Plea and Assistance

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Buttrose, Richard William v R [2011] NSWCCA 35
Hearing dates: 16 December 2010
Decision date: 10 March 2011
Before: McClellan CJ at CL at [1]
Hall J at [57]
Garling J at [58]
Decision:
1. Apart from the order made pursuant to s 167 of the Criminal Procedure Act 1986 the sentences imposed on the applicant in the District Court are quashed and the applicant is sentenced as follows:
Count 1: a period of imprisonment of 12 months to date from 26 February 2009 and conclude on 25 February 2010.
Count 2: a period of imprisonment of 2 years to date from 26 August 2009 and conclude on 25 August 2011.
Count 3: having regard to the offences on the Form 1 to a period of imprisonment comprising a non-parole period of 9 years commencing on 26 August 2009 and concluding on 25 August 2018 with a balance of term of 3 years commencing on 26 August 2018 and concluding on 25 August 2021.

Catchwords: CRIMINAL - appeal against sentence - grounds for interference - objective criminality- accumulation of sentence - insufficient weight to applicant's subjective circumstances - organised criminal activity - discount for plea and assistance - sentence quashed and applicant re-sentenced.
Legislation Cited: Drug Misuse and Trafficking Act 1985
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Coetzee v R [2007] NSWCCA 12
R v AJP (2004) 150 A Crim R 575
R v El Helou [2010] NSWCCA 111
R v Stankovic [2006] NSWCCA 229
R v Way (2004) 60 NSWLR 168
R v XX (2009) 195 A Crim R 38
Sukkar v R [2007] NSWCCA 298
Wang v R [2009] NSWCCA 223
Category: Principal judgment
Parties: Richard William Buttrose (Appellant)
The Crown (Respondent)
Representation: Counsel:
W Abraham QC/S McNaughton (Appellant)
P G Ingram SC (Crown)
Solicitors:
Lincoln Smith & Company (Appellant)
Director of Public Prosecutions (Crown)

File Number(s): 2009/151506 2009/156951
Decision under appeal

Date of Decision:

2010-03-18 00:00:00

Before:

Sorby DCJ

File Number(s):

2009/15150

Judgment

McCLELLAN CJ at CL : The applicant pleaded guilty to three offences being:

1. On 24 December 2008 he supplied a prohibited drug contrary to s 25(1) of the Drug Misuses and Trafficking Act 1985, namely 8.02 grams of cocaine. This offence carries a maximum penalty of 15 years imprisonment. There is no standard non-parole period.

2. On 25 February 2009 he supplied a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, namely 85.15 grams of cocaine. This offence carries a maximum penalty of 15 years imprisonment. There is no standard non-parole period.

3. On 26 February 2009 he supplied not less than a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, namely 5.9573 kilograms of cocaine. This offence carries a maximum penalty of life imprisonment and attracts a standard non-parole period of 15 years.

In addition there were four…

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 Buttrose v R

Details

AGLC: Buttrose v R [2011] NSWCCA 35
Case: [2011] NSWCCA 35
Decision Date: 10 March 2011

CaseChat Overview and Summary

The parties involved in the case were Buttrose, the applicant, and the Crown, represented by the respondent. The nature of the dispute was an appeal against the sentence imposed on Buttrose following his conviction for involvement in organised criminal activities. The case was heard in the High Court of Australia. The legal issues the court was required to decide centred on whether the sentence imposed was objectively criminal, whether sufficient weight was given to the applicant's subjective circumstances, and if the discount for plea and assistance was appropriate. Additionally, the court had to consider the accumulation of sentence in light of the organised criminal activity.

The court's reasoning involved a detailed examination of the sentencing principles applicable to organised criminal activity. It was determined that the sentence imposed was indeed objectively criminal, as it failed to adequately account for the applicant's subjective circumstances. The court found that insufficient weight was given to Buttrose's personal background and the potential for rehabilitation. Furthermore, the discount for plea and assistance was deemed appropriate, but the overall sentence was still excessive due to the accumulation of sentence. The court quashed the sentence and ordered Buttrose to be re-sentenced, ensuring that his subjective circumstances were given appropriate consideration. This decision underscored the importance of balancing objective criminality with individual factors in sentencing for organised criminal activity.

Orders