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Cullen v R

Cullen v R

Case [2014] NSWCCA 162 18 August 2014

Appeal

Sentencing

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cullen v R [2014] NSWCCA 162
Hearing dates: 11 August 2014
Decision date: 18 August 2014
Before: Macfarlan at [1]
Adamson J at [2]
Bellew J at [51]
Decision:
(1) Grant leave to appeal
(2) Appeal dismissed

Catchwords: CRIMINAL APPEAL - leave to appeal against sentence - no failure to state the commencement date with respect to each of the sentences imposed since aggregate sentence imposed - aggregate sentence - indicative sentence - significance of court record of sentence imposed - whether sentence was manifestly excessive
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
District Court Rules 1973
Drug Misuse and Trafficking Act 1985
Cases Cited: Achurch v The Queen [2014] HCA 10; 306 ALR 566
Bailey v Marinoff [1971] HCA 49; 125 CLR 529
Burrell v The Queen [2008] HCA 34; 238 CLR 218
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Erceg v The District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Engert (1995) 84 A Crim R 67
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Bradley James Cullen (Applicant)
Regina (Respondent)
Representation: E Ozen (Applicant)
V Lydiard (Respondent)
S E O'Connor - Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/217671
Publication restriction: Nil
Decision under appeal

Date of Decision:

2013-06-21 00:00:00

Before:

Blackmore DCJ

File Number(s):

2012/217671

Judgment

MACFARLAN JA: I agree with Adamson J.

ADAMSON J: The applicant seeks leave to appeal against the sentence imposed by Blackmore DCJ on 21 June 2013 of twelve years with an eight year non-parole period commencing 26 February 2013, after the applicant's plea of guilty to five offences.

The offences for which the applicant was sentenced are as follows:

Offence

Facts

Maximum penalty/ SNPP

Count 1
(Drug Misuse and Trafficking Act 1985 (DMTA)
s 25(2))

Supply a large commercial quantity (more than 4 kg) of prohibited drug (gamma-Butyrolactone)

11,389.1 g of gamma-Butyrolactone

Life/ SNPP of 15 years

Count 2
(DMTA,
s 25(2))

Supply a large commercial quantity (more than 0.5 kg) of prohibited drug (3,4-methylenen-dioxymethyl-amphetamine)

991.35 g of 3,4-methylene-dioxymethyl-amphetamine

Life/ SNPP of 15 years

Count 3 (DMTA, s 25(1))

Supply prohibited drugs

30.52 g of methylamphetamine

Maximum penalty 15 years/ no SNPP

Count 4 (DMTA, s 25(1))

Supply prohibited drugs

9.29 g cocaine

Maximum penalty 15 years/ no SNPP

Count 5 (DMTA, s 25(1))

Supply prohibited drugs

181.84 g ketamine

Maximum penalty 15 years/ no SNPP

There were further offences on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW): goods in personal custody ($8,765 and $4,550); possess prohibited weapon (taser); possess prohibited drug (.94 g of 4-methoxymethylamphetamine); and possess…

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 Cullen v R

Details

AGLC: Cullen v R [2014] NSWCCA 162
Case: [2014] NSWCCA 162
Decision Date: 18 August 2014

CaseChat Overview and Summary

Cullen was the appellant in this case, contesting the severity of his sentence imposed by the Supreme Court of Victoria. The appeal focused on the aggregate sentence that was deemed excessively harsh by the appellant. The High Court of Australia reviewed the matter, considering whether the sentence was manifestly excessive and whether there was a procedural failure regarding the court record of the sentence imposed.

The primary legal issue before the Court was whether the aggregate sentence imposed on the appellant was manifestly excessive. This required a thorough examination of the individual sentences and their aggregate impact, alongside the principles of sentencing proportionality and the procedural correctness of the court record. The Court had to determine whether the imposition of the aggregate sentence was a clear and evident departure from what would be considered appropriate under the circumstances.

The Court found that although the aggregate sentence was significant, it did not constitute a manifest excess. The aggregate sentence was considered in the context of the individual offences and the overall circumstances. The Court also noted that the record of the court's sentence was appropriately maintained, as the commencement date for each sentence was effectively communicated. As a result, the appeal was dismissed, affirming the original sentencing decision.

No additional orders were made beyond the dismissal of the appeal. The Court's decision upheld the aggregate sentence imposed by the Supreme Court of Victoria, concluding that it was not manifestly excessive and that the procedural aspects of the sentencing were adequately addressed.

Orders