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Deakin v R

Deakin v R

Case [2014] NSWCCA 121 4 July 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Deakin v R [2014] NSWCCA 121
Hearing dates: 1 April 2014
Decision date: 04 July 2014
Before: Hoeben CJ at CL at [1]
Adams J at [2]
Hall J at [3]
Decision:
(1)Leave to appeal against the sentences imposed on the applicant by the District Court on 26 June 2012 be granted.
(2)Appeal allowed.
(3)Quash the sentences imposed by the District Court on 26 June 2012.
(4)In lieu thereof, the applicant be re-sentenced as follows:
(a)In respect of Count 1, to a term of imprisonment comprising a non-parole period of 6 years 9 months to commence on 28 March 2010 and to expire on 27 December 2016 with a balance of term of 3 years 9 months to expire on 27 September 2020.
(b)In respect of Count 2, to a fixed term of imprisonment of 12 months, commencing on 28 March 2010 and to expire on 27 March 2011.
(5)The earliest date upon which the applicant will be eligible for release to parole is 28 December 2016.

Catchwords: CRIMINAL LAW - sentence appeal - one count supply a large commercial quantity of prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act - one count participate in a criminal group contrary to s 93IK(1) - whether sentencing judge erred in commencing the sentence only two months before the completion of the earlier non-parole period being served - whether the sentencing judge made inadequate allowance for the finding of special circumstances when setting the non-parole period on Count 1 - whether the sentencing judge erred in selecting the commencement date for the sentences imposed - leave to appeal granted - appeal allowed - applicant re-sentenced
Legislation Cited: Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Cases Cited: Choi v The Queen [2007] NSWCCA 150
Franklin v R [2013] NSWCCA 122
Johnson v The Queen (2004) 78 ALJR 616
Kalache v R [2011] NSWCCA 210
LG v The Queen [2012] NSWCCA 249
Mill v The Queen (1988) 166 CLR 59
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Close (1992) 31 NSWLR 743
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v MMK (2006) 164 A Crim R 481
R v Scott [2005] NSWCCA 152
Category: Principal judgment
Parties: Andrew Benjamin Deakin (Applicant)
Crown (Respondent)
Representation: Counsel:
T Game SC; D Barrow (Applicant)
S Herbert (Respondent)
Solicitors:
The Law Practice (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/7695
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-06-26 00:00:00

Before:

Tupman DCJ

File Number(s):

2009/7695

Judgment

HOEBEN CJ at CL: I agree with Hall J.

ADAMS J: I agree with Hall J.

HALL J: The applicant, Andrew Benjamin Deakin, seeks leave to appeal in respect of a sentence imposed on him by the District Court on 26 June 2012.

On 27 May 2011, the applicant pleaded guilty to an indictment containing the…

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 Deakin v R

Details

AGLC: Deakin v The Queen [2014] NSWCCA 121
Case: [2014] NSWCCA 121
Decision Date: 04 July 2014

CaseChat Overview and Summary

In the High Court of Australia, the matter of Deakin v R was heard and determined. The applicant, Deakin, was convicted of one count of supplying a large commercial quantity of a prohibited drug and one count of participating in a criminal group. Deakin appealed against his sentence, contending that the sentencing judge had erred in several respects. The appeal raised questions about whether the judge had erred in commencing the sentence only two months before the completion of the earlier non-parole period being served, whether the judge made inadequate allowance for the finding of special circumstances when setting the non-parole period on Count 1, and whether the judge erred in selecting the commencement date for the sentences imposed.

The High Court examined the legal principles governing sentence appeals, focusing on the need for a sentence to be proportionate and not manifestly inadequate or excessive. The Court considered the sentencing judge's assessment of the relevant factors, including the nature and circumstances of the offending, the offender's culpability, and the impact of any special circumstances. The Court noted that the sentencing judge had recognised the existence of special circumstances but had not adequately accounted for them in determining the non-parole period for Count 1. The Court also found that the judge's choice of the commencement date for the sentences imposed was inappropriate, as it effectively resulted in Deakin serving a longer period of imprisonment than necessary. The Court concluded that the sentencing judge had erred in these respects.

Having found that the sentencing judge had erred, the High Court allowed the appeal and re-sentenced Deakin. The Court set a new non-parole period for Count 1, taking into account the special circumstances more appropriately. The Court also adjusted the commencement date for the sentences to ensure Deakin did not serve an excessive period of imprisonment. The final orders of the Court reflected these adjustments, providing clarity and finality to Deakin's sentencing.

Orders