Darcy v R - [2019] NSWCCA 159

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Darcy v R [2019] NSWCCA 159
Hearing dates: 12 July 2019
Decision date: 19 July 2019
Before: Leeming JA at [1];
R A Hulme J at [2];
Davies J at [57]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal against sentence dismissed.

Catchwords: CRIME — appeals — appeal against sentence – sentenced for ongoing drug supply, drug supply, and proceeds of crime offences – whether primary judge failed to give any weight to remorse – no error established no submission made and where evidence of remorse relevant to s 21A(3)(i) not self-evident on the materials – whether primary judge imposed a manifestly excessive aggregate sentence – potential disadvantage on appeal where ground asserting manifest excess particularised in sub-grounds asserting patent error – no error in primary judge’s assessment of objective seriousness where no submissions made below against such finding – no error in parity between the indicative sentences imposed for the supply offences – no error in aggregate sentence having regard to totality of criminality and the applicant’s subjective case
Legislation Cited: Crimes Act 1900 (NSW), s 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
Cases Cited: Hurmz v R [2017] NSWCCA 235
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mulato v R [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Benjamin Darcy (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr M Smith (Applicant)
Ms A Bonnor (Crown)
Solicitors:
McGirr Lawyers
Solicitor for Public Prosecutions

File Number(s): 2017/357284
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

1 November 2018

Before:

Robison DCJ

File Number(s):

2017/357284

HEADNOTE

[This headnote is not to be read as part of the judgment]
On the streets of Sydney’s eastern suburbs, Mr Benjamin Darcy (the applicant) supplied small quantities of cocaine to a police agent on four occasions within a 10 day period. The applicant pleaded guilty to three charges: supply prohibited drug (cocaine) on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act); supply prohibited drug (cocaine) contrary to s 25A of the Act; and knowingly deal with proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW). The applicant presented a strong subjective case, having pleaded guilty at an early stage. In addition, the primary judge found that the applicant had good prospects of rehabilitation and was unlikely to reoffend.
The primary judge imposed an aggregate sentence of 3 years, 9 months with a…

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 Darcy v R

Details

AGLC: Darcy v The Queen [2019] NSWCCA 159
Case: [2019] NSWCCA 159
Decision Date: 19 July 2019

CaseChat Overview and Summary

In the matter of Darcy v R, the appellant was convicted of ongoing drug supply, drug supply, and proceeds of crime offences. The appellant appealed against his sentence, arguing that the primary judge failed to consider his remorse and that the aggregate sentence was manifestly excessive. The appeal was heard by the Court of Appeal.

The court was required to determine whether the primary judge failed to give any weight to the appellant's remorse and whether the primary judge imposed a manifestly excessive aggregate sentence. The court also needed to consider the parity between the indicative sentences imposed for the supply offences and the totality of the criminality and the appellant's subjective case.

The court found that the primary judge did not err in failing to consider the appellant's remorse as it was not self-evident from the evidence. The court also found that there was no error in the primary judge's assessment of the objective seriousness of the offences as no submissions were made below against such finding. The court found no error in the parity between the indicative sentences imposed for the supply offences and the aggregate sentence having regard to the totality of the criminality and the appellant's subjective case. The court concluded that there was no manifest excess in the aggregate sentence.

The court dismissed the appeal and affirmed the sentence imposed by the primary judge.

Orders