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Carter (a pseudonym) v The Queen

Carter (a pseudonym) v The Queen

Case [2021] NSWCCA 208 10 September 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carter (a pseudonym) v R [2021] NSWCCA 208
Hearing dates: 18 August 2021
Date of orders: 10 September 2021
Decision date: 10 September 2021
Before: Bathurst CJ at [1]
Simpson AJA at [2]
Bellew J at [3]
Decision:
(1) Grant leave to appeal against sentence.
(2) Allow the appeal.
(3) Quash the aggregate sentence imposed on the applicant in the District Court.
(4) Give the following indicative sentences:
(a) count 1 – 4 years and 9 months imprisonment;
(b) count 2 – 3 years imprisonment;
(c) count 3 – 3 years imprisonment;
(d) offence (i) on the s 166 Certificate – 6 months imprisonment; and
(e) offence (ii) on the s 166 Certificate – 6 months imprisonment.
(5) In lieu of the aggregate sentence imposed in the District Court, impose an aggregate sentence of 6 years and 9 months imprisonment commencing on 14 November 2018 and expiring on 13 August 2025.
(6) Specify a non-parole period of 4 years and 2 months imprisonment commencing on 14 November 2018 and expiring on 13 January 2023.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Drug supply offences – Where counsel for the applicant on sentence made a concession to the sentencing judge that the offending was in the mid-range – Where a finding was made by the sentencing judge in accordance with that concession – Whether exceptional circumstances had been established allowing the applicant to resile from that concession – Whether there had been a miscarriage of justice – Whether finding of the sentencing judge was reasonably open – Limited role played by applicant – Where offending had no upper limit in terms of quantity – Discussion as to the significance of the weight of the drug in such circumstances – Finding that the offending was in the mid-range not reasonably open on the evidence – Error established – Re-sentence – Unlikely to re-offend – Genuine remorse – Excellent prospects of rehabilitation – Finding of special circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act1985 (NSW)

Cases Cited:
Bayram v R [2012] VSCA 6
FL v R [2020] NSWCCA 114
Keane v R [2011] VSCA 156
McDowall v R [2019] NSWCCA 29
Mulato v R [2006] NSWCCA 282
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
R v Amati [2019] NSWCCA 193
Romero v R (2011) 32 VR 486; [2011] VSCA 45
Sharma v R [2017] NSWCCA 85
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category: Principal judgment
Parties: Carter (a pseudonym) – Applicant
Regina - Respondent
Representation:
Counsel:
A Evers – Applicant
C Curtis – Respondent
Solicitors:
Katsoolis & Co – Applicant
C Hyland, Solicitor for Public Prosecutions –Respondent

File Number(s): 2018/350639
Publication restriction: Nil
Decision under appeal

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 Carter (a pseudonym) v The Queen

Details

AGLC: Carter (a pseudonym) v The Queen [2021] NSWCCA 208
Case: [2021] NSWCCA 208
Decision Date: 10 September 2021

CaseChat Overview and Summary

The case of Carter (a pseudonym) v The Queen involved an application for leave to appeal against the sentence imposed for drug supply offences. The applicant, Carter, was before the court arguing that the sentencing judge had erred in finding that the offending was in the mid-range, rather than the lower range. The primary issue before the court was whether there were exceptional circumstances that allowed Carter to resile from the concession made by his counsel to the sentencing judge. Carter argued that a miscarriage of justice had occurred due to the sentencing judge’s finding not being reasonably open on the evidence.

The court considered the role played by Carter in the offending and noted that his involvement was limited. It was highlighted that the nature of the drug supply offences had no upper limit in terms of the quantity of drugs involved. The court engaged in a detailed discussion about the significance of the weight of the drug in such circumstances. Ultimately, the court found that the finding of the sentencing judge was not reasonably open on the evidence. The court established that an error had been made, and thus, the case warranted re-sentencing. The court acknowledged that Carter was unlikely to re-offend, expressed genuine remorse, and had excellent prospects of rehabilitation. The court found special circumstances existed, justifying a re-sentencing hearing.

The court granted leave to appeal and ordered a re-sentencing hearing, taking into account the special circumstances identified. The decision underscored the importance of ensuring that findings of fact by sentencing judges are reasonably open on the evidence, particularly in cases where concessions made by counsel play a significant role in the sentencing outcome. The court’s decision highlighted the need for meticulous consideration of all factors, including the offender’s role, the nature of the offence, and prospects for rehabilitation when determining the appropriate sentence.

Orders