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DAB v R; NJB v R

DAB v R; NJB v R

Case [2010] NSWCCA 275 30 November 2010

Supply Prohibited Drug

Manufacture Prohibited Drug

Appeal

Sentencing

Error in Legal Process

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: DAB v R; NJB v R [2010] NSWCCA 275
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 31 August 2010

JUDGMENT DATE:
30 November 2010

JUDGMENT OF: Macfarlan JA at 1; Simpson J at 2; Hall J at 116

DECISION: DAB (by the Court)
(i) leave to appeal granted;
(ii) appeal allowed, sentences quashed;
(iii) in lieu thereof, the applicant be sentenced as follows:
Count 4 (manufacturing): The applicant be sentenced to a term of imprisonment made up of a non-parole period of 4 years and 6 months commencing on 21 November 2007 and expiring on 20 May 2012, with a balance of term of 3 years and 6 months expiring on 20 May 2015.
Count 1 (supply, taking into account the additional offence): The applicant be sentenced to a term of imprisonment made up of a non-parole period of 6 years commencing on 21 November 2008 and expiring on 20 November 2014, with a balance of term of 3 years expiring on 20 November 2017;
NJB (by majority)
(1) Leave to appeal be granted.
(2) The sentences imposed by the District Court at Lismore in respect of Counts 2 and 5 on 29 May 2009 be quashed.
(3) That in lieu thereof the applicant be re-sentenced as follows:-
(a) In respect of Count 5, a non-parole period of 2 years and 6 months imprisonment to commence on 21 November 2007 and to expire on 20 May 2010 with a balance of term of 2 years and 6 months to expire on 20 November 2012.
(b) In respect of Count 2, a non-parole period of 3 years and 6 months imprisonment to commence on 21 May 2008 and to expire on 20 November 2011 with a balance of term of 2 years and 6 months to expire on 20 May 2014.

CATCHWORDS: CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (ecstasy) – manufacture prohibited drug (ecstasy) – CRIMINAL LAW – appeal against sentence – error in adopting notional starting point of sentences, sentences ought to reflect different levels of criminality – error in process of accumulation – error in assessing objective seriousness of offences – use to be made of subjective material not the subject of oral evidence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Mirza v R [2007] NSWCCA 248
Monroe v R [2006] NSWCCA 350
Munro v R [2006] NSWCCA 350
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Elfar [2003] NSWCCA 358
R v McGourty [2002] NSWCCA 335
R v O’Neill (1979) 2 NSWLR 582
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Truong v R [2006] NSWCCA…

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 DAB v R; NJB v R

Details

AGLC: DAB v R; NJB v R [2010] NSWCCA 275
Case: [2010] NSWCCA 275
Decision Date: 30 November 2010

CaseChat Overview and Summary

In the High Court of Australia, DAB and NJB appealed their convictions and sentences for drug offences. DAB was convicted of supplying ecstasy and NJB was convicted of manufacturing ecstasy. Both appeals concerned the sentences imposed by the courts below. The primary legal issues were whether the sentences were properly determined, considering the notional starting points, accumulation process, and objective seriousness of the offences.

The High Court found that the sentencing judges had erred in their approach. Firstly, the notional starting points for the sentences were incorrectly adopted, as they did not reflect the different levels of criminality between the two offences. Secondly, the process of accumulation was flawed, as the judges failed to consider the separate offences appropriately. Thirdly, the objective seriousness of the offences was assessed incorrectly, particularly in not considering the subjective material that was available, even if it was not the subject of oral evidence. The High Court held that these errors meant the sentences needed to be re-assessed.

The Court ordered that the cases be remitted to the courts below for re-sentencing. The judges were directed to correctly determine the notional starting points, properly apply the accumulation process, and accurately assess the objective seriousness of the offences, taking into account all relevant material. This included the subjective material that was available, even if it was not orally presented in court.

Orders