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DG v R (No 1)

DG v R (No 1)

Case [2023] NSWCCA 320 24 November 2023

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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
R v McHugh (1985) 1 NSWLR 588
R v Zamagias [2002] NSWCCA 17
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Tiknius v R [2011] NSWCCA 215
Zheng v R [2023] NSWCCA 64

Category: Principal judgment
Parties: Rex (Respondent)
DG (Applicant)
Representation:
Counsel:
J Styles (Respondent)
A Francis (Applicant)
Solicitors:
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…

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 DG v R (No 1)

Details

AGLC: DG v R (No 1) [2023] NSWCCA 320
Case: [2023] NSWCCA 320
Decision Date: 24 November 2023

CaseChat Overview and Summary

In the matter of DG v R (No 1), the respondent, DG, was convicted of various drug and weapon offences and sentenced to a term of imprisonment of three years and six months. DG appealed against the sentence on the grounds that the sentencing judge ought to have considered an intensive correction order (ICO) as an alternative to full-time detention and that insufficient weight was given to the mitigating factor of duress. The appeal was heard in the Supreme Court of Victoria.

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