Care v The The Queen - [2022] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Care v R [2022] NSWCCA 101
Hearing dates: 14 March 2022
Date of orders: 20 May 2022
Decision date: 20 May 2022
Before: Macfarlan JA at [1];
Walton J at [2];
Rothman J at [3]
Decision:
(1)   Grant leave to appeal;
(2)   Uphold the appeal;
(3)   Quash the sentence imposed on the applicant, Adrian Cosmo Care, in the District Court on 17 December 2020 and, in lieu thereof, sentence the applicant, Adrian Cosmo Care, to an aggregate sentence of a non-parole period of 3 years and 6 months commencing 22 June 2019 and concluding 21 December 2022, and the remainder of the term of imprisonment, being 1 year and 9 months to conclude on 21 September 2024.

Catchwords:
CRIME – Sentence Appeal – operation of pre-conditions to s 21A(3)(I) OF Crimes (Sentencing Procedure) Act – failure to take account of mandatory consideration – mistake of fact as to extent of applicant deprivation – non-acceptance of unchallenged and uncontroverted evidence – appeal upheld – resentence.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A and 22
Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:
Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37
Butters v R [2010] NSWCCA 1
Devaney v R [2012] NSWCCA 285
House v The King (1936) 55 CLR 499
Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25
Morrison v R (2009) 197 A Crim R 103; [2009] NSWCCA 211
Qutami v R (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Baker [2001] NSWCCA 85
R v Care; R v Al-Khateib [2020] NSWDC 856
Veen v The Queen (No 2) (1988) 164 CLR 465
Wong v The Queen (2001) 207 CLR 584

Category: Principal judgment
Parties: Adrian Cosmo Care (Applicant)
Regina (Crown)
Representation:
Counsel:
T Game SC / E James (Applicant)
E Wilkins SC (Respondent)
Solicitors:
City Group Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/91716
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Care; R v Al-Khateib [2020] NSWDC 856

Date of Decision:

17 December 2020

Before:

Bennet SC DCJ

File Number(s):

2019/91716

Judgment

MACFARLAN JA: I agree with Rothman J.
WALTON J: I agree with Rothman J.
ROTHMAN J: The applicant, Adrian Care, seeks leave to appeal against the sentenced imposed upon him by Judge Bennett SC in the District Court on 22 November 2020. The applicant pleaded guilty before the Local Court prior to his arraignment and was sentenced by Bennett SC DCJ to an aggregate term of imprisonment of 6 years and 9 months, commencing 22 June 2019 with a non-parole period of 4 years and 9 months, concluding 21 March 2024.
The offences to which the applicant pleaded guilty and for which he was sentenced were:

Count

Offence

Maximum penalty

Indicative Sentence

Indictment

Seq 3

Knowingly supply large commercial quantity methylamphetamine (1102.85g) – s 25(1) Drug Misuse and Trafficking…

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 Care v The The Queen

Details

AGLC: Care v The The Queen [2022] NSWCCA 101
Case: [2022] NSWCCA 101
Decision Date: 20 May 2022

CaseChat Overview and Summary

The case before the court was an appeal by Care against a sentence imposed by the District Court. The appellant was convicted of a crime and subsequently sentenced, which he now seeks to appeal on the basis of alleged errors in the application of the law. The appeal was heard in the New South Wales Court of Criminal Appeal.

The central issue before the court was whether the trial judge had correctly applied the relevant legal provisions in sentencing the appellant. Specifically, the court had to consider whether the trial judge properly took into account the mandatory considerations under section 21A(3)(I) of the Crimes (Sentencing Procedure) Act, and whether there was an error in the judge's understanding of the facts concerning the extent of the appellant's deprivation, which the appellant argued was a mistake of fact. The appellant further contended that the trial judge failed to accept unchallenged and uncontroverted evidence which should have influenced the sentence.

In assessing the appeal, the court found that the trial judge did indeed err in not fully considering the mandatory sentencing provisions applicable to the case. The court held that the judge's misunderstanding of the facts regarding the extent of the appellant's deprivation was a material error that affected the sentence. Additionally, the court determined that the trial judge's refusal to accept certain evidence was unwarranted and prejudicial to the appellant. Based on these findings, the court concluded that the sentence was improper and allowed the appeal. The case was remitted to the District Court for a re-sentencing hearing.

The court ordered that the appeal be upheld, and the matter be remitted to the District Court for the appellant to be re-sentenced in accordance with the law. The court did not make any further orders beyond the remittal for re-sentencing.

Orders