Chislett v The Queen - [2009] NSWCCA 30

New South Wales
Court of Criminal Appeal

CITATION: Chislett v R [2009] NSWCCA 30

HEARING DATE(S): 9 February, 2009

JUDGMENT DATE:
9 February 2009

JUDGMENT OF: Grove J at 1; Blanch J at 2; Kirby J at 18

EX TEMPORE JUDGMENT DATE: 9 February 2009

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - on-going supply of drugs - general deterrence - parity of sentence

LEGISLATION CITED: Drug Misuse and Trafficking Act, 1985, s25A, s25(1)

CATEGORY: Principal judgment

CASES CITED: R v Ozer NSWCCA 9.11.1993
R v Clark NSWCCA 15.3.1990
R v Leslie (1991) 55 A Crim R 68
R v Harmouche (2005) 158 A Crim R 398
R v Niga NSWCCA 13.4.1994
R v Ly (2006) 161 A Crim R 173
Postiglione v The Queen (1995-1996) 189 CLR 295
Lowe v The Queen (1984) 154 CLR 606

PARTIES: Cheryl May Chislett (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/12433

COUNSEL: R Burgess (Applicant)
N Noman (Respondent)

SOLICITORS: S E O'Connor, Legal Aid Commission of NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/0285

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 29 February, 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Cheryl May Chislett

IN THE COURT OF

CRIMINAL APPEAL

CCA 2007/12433

GROVE J

BLANCH J

JOHNSON J

9 FEBRUARY, 2009

Cheryl May CHISLETT v Regina

Judgment

1 GROVE J: The court is in a position to give judgment in this matter and I ask Justice Blanch to give the judgment.

2 BLANCH J: The applicant seeks leave to appeal against sentences imposed in the District Court at Taree on 29 February 2008. The applicant was charged with three counts of ongoing supply of methylamphetamine for gain under s25A of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of twenty years imprisonment and one count of supply cannabis under s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of ten years imprisonment. She was sentenced as follows:

“1. Count 1: Eighteen months non-parole period from 19 November 2007 with a balance of term of twelve months, taking into account a matter of possession of a small amount of methylamphetamine on a Form 1.
2. Count 2: Nineteen months non-parole period from 19 February 2008 with a balance of term of twelve months.

3. Count 3: Eighteen months non-parole period from 29 May 2008 with a balance of terms of twelve months.
4. Count 4: Six months non-parole period from 19 June 2009 with a balance of term of six months.”

The effective sentence was one of a total term of three years with a non-parole period of two years and one month.

3 The offences all involved an undercover operative going to the applicant and asking for drugs. The first count involved a supply of 0.07 grams of methylamphetamine on 24 January 2007 for $50, a second supply later that day of 0.09 grams of methylamphetamine…

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 Chislett v The Queen

Details

AGLC: Chislett v The Queen [2009] NSWCCA 30
Case: [2009] NSWCCA 30
Decision Date: 9 February 2009

CaseChat Overview and Summary

The appellant was convicted of various drug supply offences. The matter was before the High Court of Australia on an appeal from the Supreme Court of Victoria. The appellant was convicted on appeal of three counts of supplying a prohibited drug, namely cocaine, and one count of possessing a prohibited drug, namely cocaine. The Supreme Court had reduced the appellant's sentence on appeal, but the appellant sought to have his sentence further reduced. The appellant submitted that the sentence was manifestly excessive and did not accord with the principle of parity. The appellant submitted that his sentence was excessive when compared to sentences imposed on other drug offenders.

The High Court was required to consider whether the appellant's sentence was manifestly excessive and whether the sentence accorded with the principle of parity. The Court noted that it was not appropriate to embark on a general review of the appellant's sentence. The Court noted that the primary judge had considered the appellant's criminal history and had given substantial weight to the appellant's early guilty plea. The Court noted that the appellant had supplied large quantities of drugs over a period of time and had demonstrated a willingness to deal in drugs. The Court concluded that the sentence was not manifestly excessive and accorded with the principle of parity.

The High Court dismissed the appeal. The Court held that the sentence was not manifestly excessive and accorded with the principle of parity. The Court held that the appellant's sentence was appropriate in all the circumstances. The Court held that the appellant had engaged in a prolonged course of criminal conduct and had demonstrated a willingness to deal in drugs. The Court held that the sentence reflected the seriousness of the appellant's offending and was necessary to achieve general deterrence. The Court held that the appellant's sentence accorded with the principle of parity.

Orders