Content removed. - [2020] NSWCCA 352

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Connell v R [2020] NSWCCA 352
Hearing dates: 20 November 2020
Decision date: 21 December 2020
Before: Hoeben CJ at CL at [1];
Davies J at [54];
Fagan J at [55]
Decision:
(1)   Appeal allowed.
(2)   The sentence imposed on the applicant by Priestley SC DCJ on 16 December 2019 is quashed.
(3)   In lieu thereof, the applicant is sentenced to imprisonment for 8 years, commencing 16 February 2019 and expiring 15 February 2027 with a non-parole period of 5 years and 2 months expiring 15 April 2024.

Catchwords:
CRIMINAL LAW – sentence appeal – supply large commercial quantity of MDA and possession of firearms – whether sentencing judge applied the early plea discount to the indicative sentences – ambiguity in sentencing judge’s reasons amounting to error of law – appeal against sentence allowed – need to re-sentence.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Berryman v R [2017] NSWCCA 297
Elsaj v R [2017] NSWCCA 124
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
PG v R [2017] NSWCCA 179
(R v Andrew John Black; R v Rowan Alastair Connell [2019] NSWDC 756).
R v Cahill [2015] NSWCCA 53
Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291

Category: Principal judgment
Parties: Rowan Alastair Connell – Applicant
Regina – Respondent
Representation:
Counsel:
J Brock – Applicant
M Kumar – Respondent
Solicitors:
Randall Legal – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2019/52493
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 756

Date of Decision:

16 December 2019

Before:

Priestley SC DCJ

File Number(s):

2019/52493

JUDGMENT

HOEBEN CJ at CL:

Offence and sentences

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed by his Honour Judge Priestley SC at the Lismore District Court on 16 December 2019. His Honour sentenced the applicant and co-offender in the same proceedings (R v Andrew John Black; R v Rowan Alastair Connell [2019] NSWDC 756).

On 25 September 2019, the applicant pleaded guilty in the Local Court to three charges and asked that a further four charges be taken into account on a Form 1.
The three charges were:

supply a large commercial quantity of MDA (6.5245kg) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). The maximum penalty for this offence is life imprisonment and there is a standard non-parole period of imprisonment for 15 years;

possession of a shortened firearm, contrary to s 62(1)(b) of the Firearms Act 1996 (NSW). The maximum penalty for this offence is 14 years imprisonment; and

possession of a pistol contrary to s 7(1) of the Firearms Act 1996. The maximum penalty for this offence is imprisonment for 14 years…

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: Connell v R [2020] NSWCCA 352
Case: [2020] NSWCCA 352
Decision Date: 01/01/2020

CaseChat Overview and Summary

The case before the court involved a challenge to the sentence imposed on a defendant convicted of supplying a large commercial quantity of the drug MDA and possessing firearms. The appellant argued that the sentencing judge had failed to properly apply an early plea discount to the indicative sentences, resulting in an overly severe sentence. The appeal was heard in the High Court of Australia.

The central legal issue was whether the ambiguity in the sentencing judge's reasons amounted to an error of law. The appellant contended that the ambiguity regarding the application of the early plea discount was a material error that rendered the sentence unlawful. The court had to determine if this ambiguity necessitated the appeal being allowed and the sentence being set aside, warranting a re-sentencing hearing.

The court found that the ambiguity in the sentencing judge's reasons did indeed amount to an error of law. The ambiguity was such that it could not be determined with sufficient clarity whether the early plea discount had been correctly applied. Consequently, the ambiguity introduced an unacceptable level of uncertainty into the sentencing process. The appeal was allowed, and the sentence was set aside. The matter was remitted to the original sentencing court for re-sentencing, with appropriate consideration of the early plea discount.

Orders