Edwards v R - [2008] NSWCCA 281

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Edwards v R [2008] NSWCCA 281

FILE NUMBER(S):
2006/13125

HEARING DATE(S):
7 November 2008

JUDGMENT DATE:
3 December 2008

PARTIES:
Steven Douglas Edwards (Applicant)
The Crown

JUDGMENT OF:
McClellan CJ at CL Hall J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/31/0006

LOWER COURT JUDICIAL OFFICER:
English DCJ

LOWER COURT DATE OF DECISION:
31 October 2007

COUNSEL:
P Lange (Applicant)
P Calvert (Crown)

SOLICITORS:
S Moran & Co (Applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
appeal and new trial and inquiry after conviction
appeal and new trial
appeal against sentence
appeal by convicted persons
applications to reduce sentence
when refused

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

TEXTS CITED:

DECISION:
1. Grant leave to appeal
2. Dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/13125
McCLELLAN CJ at CL
HALL J
HARRISON J
WEDNESDAY 3 DECEMBER 2008

EDWARDS, Steven Douglas v R

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to four counts of supplying a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The drugs were supplied over the period 11 March 2005 to 30 June 2005. The first count involved the supply of 3,4 methylenedioxymethylamphetamine (MDMA) in an amount of 1,680 grams being an amount not less than a large commercial quantity. The maximum penalty for this count was life imprisonment and/or a fine of $550,000. There is a standard non-parole period of 15 years imprisonment.
Count 2 involved an amount of 381.3 grams of amphetamine being an amount not less than the commercial quantity. The maximum penalty for this offence is imprisonment for 20 years and/or a fine of $350,000. The third count was a deemed supply of 3, 4 MDMA concerned with an amount of 225 grams. The fourth count, again deemed supply but of amphetamine involved the amount of 301.29 grams. The relevant standard non-parole period for each of counts 2, 3 and 4 was 10 years imprisonment.
There were 3 further charges which were taken into account on a Form 1 in relation to count 1 which included one charge of having goods in custody, one charge of deemed supply of 100 ecstasy tablets and another of deemed supply of 68.35 grams of methylamphetamine.
The applicant was sentenced in respect of counts 2, 3 and 4 to concurrent fixed terms of imprisonment of 7 years and 6 months. With respect to count 1, taking into account the matters on a Form 1 the sentencing judge imposed a non-parole period of 10 years with a total term of imprisonment of 17 years. The sentencing judge provided that the sentences for counts…

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 Edwards v R

Details

AGLC: Edwards v R [2008] NSWCCA 281
Case: [2008] NSWCCA 281
Decision Date: 3 December 2008

CaseChat Overview and Summary

The applicant, who was involved in the supply of large quantities of MDMA and amphetamine, was sentenced to a total term of imprisonment of 17 years with a non-parole period of 10 years for count 1, and concurrent fixed terms of 7 years and 6 months for counts 2, 3 and 4, which were wholly subsumed within the sentence for count 1. The applicant sought leave to appeal against his sentence, arguing that it was excessive and manifestly inadequate.

The central legal issue before the court was whether the applicant's sentence was manifestly inadequate or excessive. The court considered the principles of sentencing, including the need for deterrence, denunciation, and the protection of the community, as well as the circumstances of the offence and the applicant's culpability. The court also considered the impact of the sentence on the applicant's family and the potential for rehabilitation.

After considering the arguments and evidence presented, the court found that the sentence was not manifestly inadequate or excessive. The court acknowledged the seriousness of the applicant's offending, which involved the supply of large quantities of dangerous drugs over a period of more than three months. The court also considered the applicant's lack of remorse and the need for deterrence and denunciation. However, the court found that the sentence was proportionate to the offending and took into account the applicant's age and potential for rehabilitation.

Accordingly, the court refused the applicant's application for leave to appeal against his sentence. The court also made orders for the applicant to pay costs in relation to the application.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was sentenced in respect of counts 2, 3 and 4 to concurrent fixed terms of imprisonment of 7 years and 6 months. With respect to count 1, taking into account the matters on a Form 1 the sentencing judge imposed a non-parole period of 10 years with a total term of imprisonment of 17 years. The sentencing judge provided that the sentences for counts 2, 3 and 4 were wholly subsumed within the sentence in respect of count 1. The applicant seeks leave to appeal against his sentence.The facts The Crown has provided an appropriate summary of the relevant facts.“The applicant was involved for more than three months in the supply of 7,720 tablets of 3,4 methylenedioxymethylamphetamine (MDMA) at 0.25 grams per tablet. The total weight of the drug was 1,930 grams which, at $30 per tablet, had an estimated street value of $231,000. In addition the applicant was involved in the supply of 750.94 grams of amphetamine, which are $50 per 0.01 grams had a street value of $375,470.In total, the telephone intercept evidence disclosed that between 16 March 2005 and 28 June 2005 the applicant supplied 3,4 methylenedioxymethylamphetamine (MDMA) on 23 separate occasions and amphetamine on 13 separate occasions.Further, 100 tablets of 3,4 methylenedioxymethylamphetamine (MDMA) were located in the applicant’s vehicle on arrest and 900 tablets of 3,4 methylenedioxymethylamphetamine (MDMA) were located in his premises upon search by police. Police also found 380.09 grams of amphetamine in his premises and a (smaller) quantity of methylamphetamine.During March 2005, the Tuggerah Lakes Drug Unit commenced an investigation into the supply prohibited drugs by the applicant who was born on 29 September 1981, his de facto Stacey Marie McDonald, and Brendan Brian Wardell.During the course of this investigation a number of lawfully obtained telephone intercept warrants were obtained and conversations monitored in relation to these telephone warrants. These conversations had been corroborated to some extent by surveillance conducted on the applicant and exhibits later seized by investigators following the execution of search warrants.On 11 March 2005, a lawfully obtained telephone intercept was placed on a mobile phone. That mobile phone was used by the applicant.The quantity of MDMA actually supplied by the applicant was 1,680 grams. The large commercial quantity applicable to MDMA is 500 grams. The applicant also actually supplied a total quantity of 381.3 grams of amphetamine. The commercial quantity applicable to amphetamine is 500 grams.The intercepted telephone conversations were characterised by the use of drug codes, such as ‘palm trees’, ‘cheapies’ (MDMA tablets of a cheaper quality), ‘lady’ (one ounce or 28.4 grams of amphetamine), ‘butterflies’ (MDMA tables bearing a butterfly logo), ‘HSV’s’, ‘slut’ (an ounce or 28.4 grams of amphetamine), ‘eight balls’ (one eight of an ounce of 3.55 grams of amphetamine), ‘one in a bag’ (an ounce of amphetamine and 100 MDMA tables) and ‘apples’ and ‘trees’ (MDMA tablets bearing those logos). The drugs were to be on-supplied by the various purchasers.Search warrants were executed on 30 June 2005 by police on the applicant’s premises at 136 Woodbury Park Drive, Mardi. In the main bedroom of the house police located a resealable plastic bag containing a quantity of white tablets believed to be MDMA. When later weighted the bag and tablets weighed 20.8 grams. In the master bedroom shared by the applicant and Stacey McDonald police located a large wooden shoe or blanket box. Inside the base of the box police located eight resealable bags containing MDMA tablets, each bag weighed between 32.8 grams and 34.9 grams. The contents of one bag was counted and contained 100 tablets. Each bag contained 100 tablets. On a kitchen bench police located a resealable plastic bag containing pink tablets and powder believed to be MDMA. When weighed, the bag, pink tablets and powder was found to weigh 3.5 grams. The total weight of the drugs found when analysed was 223.20 grams.On 30 June 2005 police went with officers from the New South Wales Crimes Commission to a factory unit leased by the applicant at Johnson Square, Unit 9, 9-11 Johnson Road, Tuggerah for the purpose of seizing a number of motor vehicles which were said to have been purchased with the proceeds of the applicant’s drug dealing. There was a small bar fridge in which two shopping bags were found to contain eleven plastic resealable bags each of which contained a quantity of white powder. That powder was later found to weigh 301.29 grams. The drugs were to be supplied in accordance with telephone calls of 27 June 2005.The three charges taken into account on sentence, contained on a Form 1 schedule, arise from the execution of a search warrant upon the applicant’s home on 30 June 2005. In the freezer in the kitchen of the premises police located a resealable plastic bag containing a white block substance believed to be amphetamine. When later weighed the bag and the white block substance weighed was found to be 29.8 grams. In the fridge police located a number of resealable plastic bags containing methylamphetamine, weighing in total 50.3 grams.On a kitchen bench of the premises police located a number of items, including bags of methylamphetamine which, when analysed weighed 68.35 grams. In the master bedroom in the house, in the wooden shoe or blanket box, in which the police found prohibited drugs, police located an amount of cash totalling $24,540. The cash was the proceeds of the applicant’s involvement in supplying prohibited drugs.At 7.30 am on 30 June 2005, the applicant was stopped by police whilst driving at Mardi. Police from the Tuggerah Lakes Drug Unit attended and placed the applicant under arrest in relation to a number of drug supply matters. The applicant’s detention, arrest and caution was recorded on an in car video system of the Highway Patrol car. He was asked if there was anything in the car which should not be there, he indicated there was a quantity of pills and a bag in the car. Police located 100 MDMA pills in a small resealable bag in a backpack on the passenger’s seat floor of the vehicle. The applicant stated that they were for his own use. Also in the car police located four mobile phones. The phones were the ones used by the applicant in the supply of prohibited drugs. He declined to be interviewed.”The remarks of the sentencing judge

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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