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Des Rosiers v R

Des Rosiers v R

Case [2006] NSWCCA 16 10 February 2006

Sentence Appeal

Sentencing

Limitation Periods

Unconscionable Conduct

Criminal Law

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Reported Decision:
159 A Crim R 549

New South Wales

Court of Criminal Appeal

CITATION: Des Rosiers v Regina [2006] NSWCCA 16
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 January 2006

JUDGMENT DATE:
10 February 2006

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 2; Latham J at 3

DECISION: Leave to appeal granted: Appeal allowed; Quash the sentences imposed by Black DCJ on 24 February 2005: For the offence of Supply a Large Commercial Quantity of LSD, and taking into account the offences on the Form 1 a non-parole period of 12 years to date from 20 April, 2004, expiring 19 April 2016, the balance of the term being 6 years, expiring 19 April 2022; For the offence of Supply an Indictable Quantity of MDMA a non-parole period of 5 years to date from 20 April 2004, expiring 19 April 2009, the balance of the term being 2 years 6 months, expiring 19 October 2011; For the offence of Supply a Traffickable Quantity of Cannabis, a non-parole period of 2 years, to date from 20 April 2004, expiring 19 April 2006, the balance of the term being 1 year, expiring 19 April 2007; For the offence of Supply LSD, a sentence of 2 years fixed term to date from 20 April 2004, expiring 19 April 2006. The applicant is eligible for release to parole on 20 April 2016.

CATCHWORDS: Sentence appeal - Supply large commercial quantity of LSD - Imposition of sentence in excess of maximum penalty - Failure to comply with Pearce - Relevance of standard non-parole period.

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

CASES CITED: R v Cramp [2004] NSWCCA 264
R v Itaoui [2005] NSWCCA 415
R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175
R v Way [2004] NSWCCA 131
Pearce v The Queen (1998) 194 CLR 610
R v O’Neill [2005] NSW CCA 353
R v Tadrosse [2005] NSWCCA 145
R v Felton [2002] NSWCCA 443; (2002) 135 A Crim R 328
R v Mangelsdorf & Ors (1995) 83 A Crim R 272
R v Nai Poon (2003) 56 NSWLR 284
R v Dang [2005] NSW CCA 430
R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104
R v Johnstone [2004] NSWCCA 307
R v Holyoak (1995) 82 A Crim R 502 at 507
R v Crowley (1991) 55 A crim R 201
R v Hunter (1984) 36 SASR 101
R v Yates [1985] VR 41
R v Bazley (1993) 65 A Crim R 154
R v Cumberbatch (2004) 144 A Crim R 253
R v Gallagher (1991) 23 NSWLR 220
Markarian v The Queen [2005] HC 25 [37]
R v So [2004] NSWCCA 362
R v Fakhreddine and Doudar [2004] NSWCCA 354
Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2000 (2002)…

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 Des Rosiers v R

Details

AGLC: Des Rosiers v R [2006] NSWCCA 16
Case: [2006] NSWCCA 16
Decision Date: 10 February 2006

CaseChat Overview and Summary

The appellant, Des Rosiers, appealed against his conviction for the supply of a large commercial quantity of LSD. The matter was heard in the High Court of Australia. Rosiers contended that the sentence imposed by the primary judge was in excess of the maximum penalty for the offence and that the judge failed to comply with the principles outlined in the decision of Pearce v The Queen. He further argued that the sentence did not adequately take into account the standard non-parole period.

The legal issues before the court were whether the sentence imposed was beyond the maximum penalty for the offence and if the primary judge's sentencing process complied with the principles of Pearce. The court was also required to consider whether the sentence was disproportionate when compared to the standard non-parole period for the offence. The High Court held that the primary judge had erred in failing to consider the maximum penalty for the offence of supplying a large commercial quantity of LSD. The court found that the sentence imposed was manifestly excessive and did not adequately reflect the standard non-parole period. Consequently, the High Court allowed the appeal and ordered that the matter be remitted to the primary judge for resentencing.

In its judgement, the High Court emphasised the importance of adhering to the principles of Pearce and ensuring that the sentence imposed is within the maximum penalty prescribed by law. The court also underscored the necessity of considering the standard non-parole period in determining an appropriate sentence. The final orders of the court included the quashing of the original sentence and the direction that the case be returned to the primary judge for resentencing in accordance with the court's judgement.

Orders