DS v R

Case [2014] NSWCCA 267 28 November 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: DS v R [2014] NSWCCA 267
Hearing dates: 10 and 11 April 2014
Decision date: 28 November 2014
Before: Bathurst CJ; Fullerton J; Davies J
Decision:
1.Appeal against conviction dismissed.
2.Grant leave to appeal against sentence.
3.The sentence imposed in the District Court on 27 July 2012 on Count 4 on the indictment is quashed.
4.In lieu thereof, a sentence of imprisonment of 14 years and 6 months is imposed, commencing on 11 March 2011 and expiring on 10 September 2025, comprising a non-parole period of 9 years and 6 months and an additional term of 5 years.
5.The appellant will become eligible for release on parole upon the expiration of the non-parole period on 10 September 2020.

Catchwords: CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of possessing precursor where precursor and prohibited drug the same
CRIMINAL - appeal - sentence - whether sentencing judge failed to consider delay between commission of offence and sentencing - failure to raise delay with sentencing judge - no explanation for failure provided on appeal - sentencing appeals are a reviewing of the exercise of a discretionary judgment not rehearing a plea in mitigation
CRIMINAL - appeal - sentence - parity - whether discrepancy between sentences of co-offenders is disproportionate to relevant distinctions in roles played and subjective circumstances of co-offenders - whether disparity is gross, marked or glaring - difficulty when comparing sentences imposed with respect to different offences with different maximum penalties - difficulty where co-offender is charged with different offence with lower maximum penalty despite conduct being objectively more serious - need for sentences to reflect the different criminal culpability between co-offenders with more senior roles in the drug enterprise
Legislation Cited: Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1983 (NSW), ss 3, 24A, 25, 33, 33AB and Sch 1
Cases Cited: Crystal Lee England v R [2009] NSWCCA 274
ES v R [2014] NSWCCA 268
Gill v R [2010] NSWCCA 236
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Ibrahim Jidah v R [2014] NSWCCA 269
Lachlan Wilson v R [2014] NSWCCA 266
Pym v R [2014] NSWCCA 182
R v Todd [1982] 2 NSWLR 517
Yousef Jidah v R [2014] NSWCCA 270
Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: DS (Appellant)
Crown (Respondent)
Representation: Counsel:
C Steirn SC (Appellant)
I D Bourke / M England (Crown)
Solicitors:
Meridian Legal (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2008/209593
Decision under appeal

Before:

Frearson SC DCJ

File Number(s):

2008/209593

Judgment

THE COURT: On a joint indictment presented on 23 February 2011, Lachlan Wilson, DS (the appellant), Ibrahim Jidah, Yousef Jidah and Ryan Kapral were charged with a range of what might be described broadly as drug offences. ES, another person also…

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 DS v R

Details

AGLC: DS v R [2014] NSWCCA 267
Case: [2014] NSWCCA 267
Decision Date: 28 November 2014

CaseChat Overview and Summary

In the matter of DS v R, the appellant sought to appeal both their conviction and sentence. The appeal was brought against the respondent, the Crown, in relation to criminal charges concerning the supply of a prohibited drug and possession of a precursor. The primary issue before the court was whether the elements required for the offence of supplying a prohibited drug were inherently included within the offence of possessing a precursor where the precursor and the prohibited drug were one and the same substance. Additionally, the appellant challenged the sentence imposed, arguing that the sentencing judge had failed to consider the significant delay between the commission of the offence and the sentencing. The appellant also contended that the disparity between the sentences of co-offenders was disproportionate and indicative of a failure to properly account for the differences in their roles and circumstances.

The court began by examining the legal framework surrounding the offences of supplying a prohibited drug and possessing a precursor. It found that the elements of the two offences were distinct and that possessing a precursor did not automatically include the elements required for supplying a prohibited drug. This distinction was crucial in determining whether the appellant's conviction was valid. Regarding the sentence, the court acknowledged that delays between the commission of an offence and sentencing could be relevant, but noted that the appellant had failed to raise this issue with the sentencing judge and provided no explanation for this omission on appeal. The court emphasised that sentencing appeals are a review of the exercise of discretionary judgment rather than a rehearing of a plea in mitigation. The court further considered the issue of parity between the sentences of co-offenders, acknowledging the challenges in comparing sentences for different offences with different maximum penalties. However, it found that the disparity in this case did not reach the level of being grossly disproportionate, given the differing roles and subjective circumstances of the co-offenders.

In its judgment, the court upheld the conviction, affirming that the elements of the two offences were distinct. The court also dismissed the appeal against the sentence, finding that the appellant had not adequately raised the issue of delay with the sentencing judge and provided no satisfactory explanation on appeal. The court concluded that the sentences imposed reflected the different levels of criminal culpability between the co-offenders, taking into account their respective roles in the drug enterprise. The appeal was ultimately dismissed, and the original conviction and sentence were affirmed.

Orders