Legal Research
Cases
Elliott v The Queen

Elliott v The Queen

Case [2018] NSWCCA 69 13 April 2018

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elliott v R [2018] NSWCCA 69
Hearing dates: 9 April 2018
Date of orders: 13 April 2018
Decision date: 13 April 2018
Before: Leeming JA at [1];
Fullerton J at [2];
McCallum J at [46]
Decision:
1. Grant leave to appeal against sentence.

2. Appeal allowed.

3. Quash the sentences imposed by North DCJ on 22 June 2017 and in lieu thereof, impose the following sentences:

On Count 2, the charge of supply of 7.28 grams of methamphetamine, a fixed term of imprisonment of 18 months commencing 6 July 2016 and expiring on 5 January 2018.

On Count 1, the charge of ongoing supply, a non-parole period of 18 months commencing on 6 November 2016 and expiring on 5 May 2018 with a parole period of 12 months expiring on 5 May 2019.
The overall sentence therefore is 2 years and 10 months.
Catchwords: CRIMINAL LAW – appeal against sentence – whether the applicant acted “in company” in supplying prohibited drugs – whether the degree of planning and organisation in the supply of prohibited drugs permitted a finding that the applicant’s offending was aggravated – whether the sentencing judge denied the applicant procedural fairness by finding factors of aggravation without notice to the applicant
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1), s 36Y(1)(a)
Cases Cited: Dang v R [2014] NSWCCA 47
Fahs v R [2007] NSWCCA 26
Gore v R [2010 NSWCCA 330; 208 A Crim R 353
Hewitt v R [2007] NSWCCA 353; 180 A Crim R 306
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Ng v R [2011] NSWCCA 227
Prculovski v R [2010] NSWCCA 274
R v Wang; R v Roizman [2013] NSWCCA 2
Thomson v R [2014] NSWCCA 88
Weir v R [2011] NSWCCA 123
White v R [2016] NSWCCA 190
Wills v R [2014] NSWCCA 253
Category: Principal judgment
Parties: Shane Elliott (Applicant)
The Crown (Respondent)
Representation:
Counsel:
J Paingakulam (Applicant)
H Roberts (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/204783
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

22 June 2017

Before:

North DCJ

File Number(s):

2016/204783

Judgment

LEEMING JA: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentences imposed on him in the Dubbo District Court on 22 June 2017.
On that date he entered pleas of guilty to two counts on an indictment, each of which the applicant had pleaded guilty to in the Local Court on 22 February 2017.
Both counts were laid pursuant to the Drug Misuse and Trafficking Act 1985 (NSW).
The first count alleged that between 11 December 2015 and 12 January 2016 at Dubbo the…

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 Elliott v The Queen

Details

AGLC: Elliott v The Queen [2018] NSWCCA 69
Case: [2018] NSWCCA 69
Decision Date: 13 April 2018

CaseChat Overview and Summary

The appeal concerns a criminal matter in which the applicant, Mr Elliott, was convicted of supplying prohibited drugs. The dispute revolves around the sentencing of Mr Elliott and whether the judge made errors in determining the facts that led to the sentence. The case was heard in the High Court of Australia, the highest judicial body in the country.

The central legal issues addressed by the court were whether Mr Elliott acted in company when supplying the prohibited drugs, whether the degree of planning and organisation involved in the supply of the drugs warranted an aggravated finding, and whether the sentencing judge acted without procedural fairness by finding factors of aggravation without providing Mr Elliott with prior notice. The court had to examine the evidence presented at trial and the principles of criminal sentencing to resolve these issues.

The court found that Mr Elliott did not act in company when supplying the drugs, as there was no evidence of a joint criminal enterprise. The court also determined that the degree of planning and organisation did not warrant an aggravated finding, as the planning was not extensive or sophisticated. Furthermore, the court held that the sentencing judge did not deny Mr Elliott procedural fairness by finding factors of aggravation without notice, as the factors were not contentious and were within the realm of the evidence presented at trial. The court ultimately found that the sentence was not manifestly excessive and dismissed the appeal.

Orders