Egan v The Queen - [2018] NSWCCA 235

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Egan v R [2018] NSWCCA 235
Hearing dates: 12 March 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Before: Bathurst CJ at [1];
Fullerton J at [2];
Campbell J at [3]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – supply greater than indictable quantity offences – dealing with property suspected of being proceeds of crime – whether the sentencing judge erred by failing to appropriately regard and allow a sufficient discount – applicant’s childhood disadvantage – whether the sentencing judge erred by failing to have appropriate regard to prospects of rehabilitation – whether the sentence is unreasonably or plainly unjust – circumstances of offending – personal circumstances – loss of father and mother – migration to Australia – straightened financial circumstances – no genuine remorse – no profound childhood deprivation – findings open to sentencing judge
Legislation Cited: Crimes Act 1900 (NSW), s 193C
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 166, 168
Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063
Hili v R (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Neal v R (1982) 149 CLR 305; [1982] HCA 55
R v Fernando (1992) 76 A Crim R 58
R v Pham (2015) 256 CLR 550; [2015] HCA 39
Texts Cited: Nil
Category: Principal judgment
Parties: Patrick Egan (Applicant)
Regina (Respondent)
Representation:
Counsel:
C Lin (Applicant)
B Hatfield (Respondent)
Solicitors:
Lloyd Legal (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/65731990
Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

Criminal

Date of Decision:

06 September 2016

Before:

Colefax SC DCJ

File Number(s):

2015/65731

Judgment

BATHURST CJ: I agree with the orders proposed by Campbell J and with his reasons.
FULLERTON J: I also agree with Campbell J for the reasons his Honour gave that leave to appeal should be granted and the appeal dismissed.
CAMPBELL J: Under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), the applicant seeks leave to appeal from the sentence passed on him by his Honour Judge Colefax SC in the District Court on 6 September 2016.
For 2 counts of supplying greater than the indictable quantity of a prohibited drug and 1 count of dealing with property suspected of being the proceeds of crime, the applicant was sentenced to an aggregate term of imprisonment having a non-parole period of 3 years commencing on 2 August 2016 and expiring on 1 August 2019 and an additional term of 3 years, commencing on 2 August 2019 and expiring on 1 August 2022. Each of the drug supply offences carried a maximum…

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 Egan v The Queen

Details

AGLC: Egan v The Queen [2018] NSWCCA 235
Case: [2018] NSWCCA 235
Decision Date: 19 October 2018

CaseChat Overview and Summary

The case of Egan v The Queen involved the appellant, who was convicted of several indictable quantity offences related to the supply of drugs and dealing with property suspected of being proceeds of crime. The appeal was against the sentence imposed by the trial judge, with the appellant arguing that the sentence was excessively harsh and that the sentencing judge failed to appropriately consider certain mitigating factors. The appeal was heard in the High Court of Australia.

The key legal issues before the court were whether the sentencing judge erred by not sufficiently discounting the sentence for the indictable quantity offences, failing to appropriately consider the appellant's prospects of rehabilitation, and whether the sentence was unreasonably or plainly unjust. The appellant argued that the sentencing judge did not adequately take into account the mitigating factors such as the appellant's disadvantaged childhood, loss of both parents, migration to Australia, and straightened financial circumstances. The appellant also submitted that the sentence was excessive given the absence of genuine remorse and the lack of profound childhood deprivation.

The High Court considered the submissions made by both parties and examined the sentencing principles applicable to the case. The court held that the sentencing judge did not err in failing to appropriately discount the sentence for the indictable quantity offences, as the sentencing judge had adequately considered the totality of the offending and the appellant's culpability. The court also found that the sentencing judge appropriately considered the appellant's prospects of rehabilitation, despite the appellant's lack of genuine remorse. The court further held that the sentence was not unreasonably or plainly unjust, as the totality of the offending and the need to deter similar criminal conduct warranted the sentence imposed.

Ultimately, the High Court dismissed the appeal, affirming the sentence imposed by the trial judge. The court found that the sentencing judge had properly exercised their discretion and had appropriately considered the relevant mitigating factors in reaching their decision. The appeal was thus unsuccessful, and the original sentence remained in place.

Orders