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 253Category: Principal judgment Parties: Shane Elliott (Applicant)
The Crown (Respondent)Representation: Counsel:
Solicitors:
J Paingakulam (Applicant)
H Roberts (Crown)
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
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LEEMING JA: I agree with Fullerton J.
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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.
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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.
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Both counts were laid pursuant to the Drug Misuse and Trafficking Act 1985 (NSW).
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The first count alleged that between 11 December 2015 and 12 January 2016 at Dubbo the…
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- AGLC
- Elliott v The Queen [2018] NSWCCA 69
- Case
- [2018] NSWCCA 69
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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