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Dayment v R

Dayment v R

Case [2018] NSWCCA 132 29 June 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Dayment v R [2018] NSWCCA 132
Hearing dates: 22 June 2018
Decision date: 29 June 2018
Before: Payne JA at [1];
R A Hulme J at [2];
Fagan J at [78]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal against sentence dismissed.

Catchwords:
CRIME – appeal against sentence – objective seriousness – knowingly take part in supply of large commercial quantity of MDMA – where sentencing judge held that offence fell below midrange but not at lower end of scale – whether judge erred in consideration of lack of financial gain and premeditation and planning – ground rejected.
CRIME – appeal against sentence – co-offenders – disparity between sentences – whether insufficient disparity – whether such disparity as to evoke justifiable sense of grievance – supply and knowingly take part in supply of prohibited drugs – co-offender charged with more serious offences and given lengthier sentence – where relevant differences in culpability and subjective circumstances – subjective circumstances favoured co-offender but objective circumstances favoured applicant – sentence disparity fair reasonable and sensible – ground rejected.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2B)
Drugs Misuse and Trafficking Act 1985 (NSW) ss 25(1), 25(2)
Cases Cited: Dunn v R [2018] NSWCCA 108
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Mulato v R [2006] NSWCCA 282
Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26
R v Deng (1996) 91 A Crim R 80
Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
Category: Principal judgment
Parties: Kirsty Dayment (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms C Wasley (Applicant)
Mr B Hatfield (Crown)
Solicitors:
Bannisters Lawyers
Solicitor for Public Prosecutions

File Number(s): 2015/224847
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

20 April 2017

Before:

Huggett DCJ

File Number(s):

2015/224847

Judgment

PAYNE JA: I agree with R A Hulme J.
R A HULME J: Ms Kirsty Dayment ("the applicant") seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Huggett in the District Court at Sydney on 20 April 2017.
The sentence was one of imprisonment for 5 years 6 months with a non-parole period of 3 years 3 months which was specified to date from 5 February 2017. It was imposed in respect of two offences with two further offences listed on a Form 1 document taken into account in respect of the first of them.
There was an offence of supplying a prohibited drug, namely 85.26 grams of cocaine, on 31 July 2015 (identified in the District Court as "Sequence 4" but I will refer to it as "the cocaine offence"). This offence is contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW) and the maximum penalty is imprisonment for 15 years and/or a fine of…

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 Dayment v R

Details

AGLC: Dayment v R [2018] NSWCCA 132
Case: [2018] NSWCCA 132
Decision Date: 29 June 2018

CaseChat Overview and Summary

The appellant, Dayment, was convicted and sentenced for his involvement in the supply of a large commercial quantity of MDMA. He appealed against the sentence imposed by the sentencing judge, arguing that the judge erred in various respects. The appeal was heard by the Court of Appeal, which had to determine whether the sentence was appropriate and whether there was a justifiable sense of grievance due to the disparity between the sentences of co-offenders.

The primary legal issue was whether the sentencing judge erred in assessing the objective seriousness of the offence and in considering factors such as the lack of financial gain and the level of premeditation and planning. The appellant argued that these factors should have led to a lower sentence. Additionally, the appellant challenged the disparity between his sentence and that of his co-offender, who was charged with more serious offences but received a lengthier sentence. The court had to consider whether this disparity was fair and reasonable, given the differences in culpability and subjective circumstances of the co-offenders.

The Court of Appeal held that the sentencing judge did not err in assessing the objective seriousness of the offence. The judge appropriately considered the factors relevant to the offence, including the lack of financial gain and the level of premeditation and planning. The court found that the sentence was fair and reasonable, and the disparity between the sentences was justified by the relevant differences in culpability and subjective circumstances. The court concluded that the disparity did not evoke a justifiable sense of grievance and that the sentence disparity was fair, reasonable, and sensible.

The Court of Appeal dismissed the appeal, affirming the sentence imposed by the sentencing judge. The disparity between the sentences of the co-offenders was deemed fair and reasonable, and no grounds for appeal were found to be valid.

Orders