Dries v The Queen - [2014] NSWCCA 228

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dries v R [2014] NSWCCA 228
Hearing dates: 1 October 2014
Decision date: 23 October 2014
Before: Hoeben CJ at CL: [1]
Rothman J: [2]
RA Hulme J: [49]
Decision:
1.Grant leave to appeal;
2.Appeal dismissed.

Catchwords: CRIMINAL LAW - SENTENCING - appeal - agreed facts contained error as to purity affecting one smaller quantity of drugs in one offence - two offences - no error disclosed - no real possibility that error impacted on aggregate sentence imposed, nor relevant indicative sentence - applicant conceded could not have affected non-parole period - error by counsel did not affect result
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: House v R [1936] HCA 40; (1936) 55 CLR 499
R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462
Category: Principal judgment
Parties: Shannon Dries (Applicant)
Regina (Respondent)
Representation: Counsel:
C Simpson (Applicant)
NJ Adams (Respondent/Crown)
Solicitors:
Thompson Madden (Applicant)
J Pheils, Solicitor for Public Prosecutions (Respondent/Crown)

File Number(s): 2012/237563
Publication restriction: None
Decision under appeal

Date of Decision:

2013-10-29 00:00:00

Before:

Sides QC DCJ

File Number(s):

2013/237563

Judgment

HOEBEN CJ AT CL: I agree with Rothman J.

ROTHMAN J: Shannon Dries, the applicant, seeks leave to appeal a sentence imposed upon him following a plea of guilty. The effective sentence imposed was a non-parole period of three years' imprisonment, commencing 31 July 2012 and concluding 30 July 2015, with the remainder of term being a period of three years and six months expiring 30 January 2019.

A plea of guilty was entered on 26 April 2013 at the Local Court and confirmed before the District Court at all stages.

The applicant was sentenced, in the District Court, following his plea, for the following offences:

Sequence 6: Supply prohibited drug, 122 grams cannabis leaf, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (for which the maximum penalty is 10 years' imprisonment and/or a fine of $220,000 and for which there is no prescribed standard non-parole period);

Sequence 7: Supply commercial quantity of prohibited drug, 477.9 grams of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985;

Sequence 8: Supply commercial quantity of prohibited drug, 192.3 grams of 3, 4-methylenedioxyamphetamine (ecstasy) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.

[Sequences 7 and 8 above each carry a maximum penalty of 20 years' imprisonment and/or $385,000 fine and have a prescribed standard non-parole period of 10 years' imprisonment].

Further to the above, the applicant was sentenced, in relation to Sequence 7, bearing in mind two charges notified on a Form 1, which were:

(1) Two counts of supply prohibited drug, cannabis leaf, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 for which a maximum penalty is 10 years' imprisonment and/or $220,000 fine;

(2) Three counts of unlawfully obtained goods on premises, motor…

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 Dries v The Queen

Details

AGLC: Dries v The Queen [2014] NSWCCA 228
Case: [2014] NSWCCA 228
Decision Date: 23 October 2014

CaseChat Overview and Summary

The applicant, Dries, was convicted of two drug trafficking offences and appealed against the sentences imposed. The primary legal issue was whether an error by his counsel regarding the purity of one quantity of drugs affected the sentences imposed. The appeal was heard by the court, which considered whether the error disclosed any potential impact on the aggregate sentence or the relevant indicative sentence. The applicant argued that the error might have influenced the outcome, but the court found that no error had been demonstrated. It was further established that the error could not have impacted the non-parole period. Consequently, the court determined that the error by counsel did not affect the result of the sentencing process.

The court examined the agreed facts and found that the error related to the purity of a smaller quantity of drugs in one of the offences. However, the court concluded that there was no real possibility that this error impacted the aggregate sentence or the relevant indicative sentence. The applicant conceded that the error could not have influenced the non-parole period. Given these findings, the court was satisfied that the outcome would not have been different had the error not occurred. Therefore, the appeal was dismissed as the error by counsel did not affect the result.

Orders