Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: DG v R (No 1) [2023] NSWCCA 320 Hearing dates: 1 November 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Before: Wilson J: Fagan J: Sweeney J Decision: 1. Grant leave to appeal against sentence.
2. Dismiss the appeal.
Catchwords: CRIME – appeals – appeal against sentence – imprisonment by way of intensive correction order (“ICO”) – where applicant sentenced to term of imprisonment of 3 years and 6 months for drug and weapon offences – whether sentencing judge ought to have considered ICO as alternative to full-time detention – where ICO only available for aggregate term of imprisonment 3 years or less – whether aggregate ought to have been reduced by the period on remand rather than backdated to date of arrest so that aggregate less than 3 years – enlivening availability of an ICO not a relevant consideration in fixing duration and commencement date where a term of over 3 years is found appropriate
CRIME – appeals – appeal against sentence – mitigating factors – whether sufficient weight given to applicant’s uncontested evidence of non-exculpatory duress
Legislation Cited: Crimes (Sentencing) Procedure Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)
Weapons Prohibition Act 1998 (NSW)
Cases Cited: Eldridge v R [2011 NSWCCA 144
Mandranis v R [2021] NSWCCA 97
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Category: Principal judgment Parties: Rex (Respondent)
DG (Applicant)Representation: Counsel:
Solicitors:
J Styles (Respondent)
A Francis (Applicant)
Jamieson Criminal Law (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2022/101464 Publication restriction: No Decision under appeal
- Court or tribunal:
- District Court NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 6 April 2023
- Before:
- Judge O’Rourke SC
- File Number(s):
- 2022/101464
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant pleaded guilty to five charges in the Local Court relating to drug and weapons offences. For a period of 11 days in December 2021 and seven days in February 2022 the applicant controlled a mobile phone used to arrange sales of cocaine. Whilst the applicant was in control of the phone a total of 29.5 g of cocaine was delivered by drivers acting at his direction. When the applicant was arrested a search of his residence produced a bag containing two pistols, 635 rounds of ammunition and a pistol magazine.
At his sentence hearing the applicant gave unchallenged affidavit evidence that his purpose in distributing drugs since October 2020 had been to discharge debts owed to criminal associates. After communicating to his associates his desire to cease involvement in drug distribution on 23 February 2022, he was assaulted resulting in hospitalisation for eight days. Upon discharge from hospital the applicant was instructed by his associates to store the weapons. On…
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- AGLC
- DG v R (No 1) [2023] NSWCCA 320
- Case
- [2023] NSWCCA 320
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge should have considered an ICO as a sentencing option and whether sufficient weight was given to the mitigating factor of duress. An ICO is only available for an aggregate term of imprisonment of three years or less. The court had to determine if the aggregate term should have been reduced by the period on remand rather than backdated to the date of arrest, which would have made the aggregate term less than three years. The court also had to consider whether the mitigating factor of duress was adequately weighed in the sentencing process.
The court found that the sentencing judge did not err in not considering an ICO as an alternative to full-time detention. The court held that the availability of an ICO was not a relevant consideration in fixing the duration and commencement date of the sentence where a term of over three years was found appropriate. The court also found that the mitigating factor of duress was adequately considered, and the sentence imposed was appropriate.
The appeal was dismissed, and the original sentence was upheld. The court found that the sentencing judge had considered all relevant factors and that the sentence imposed was proportionate to the offence and the circumstances of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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