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Ellis v R

Ellis v R

Case [2010] NSWCCA 298 17 December 2010

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Reported Decision: 206 A Crim R 266

New South Wales

Court of Criminal Appeal

CITATION: Ellis v R [2010] NSWCCA 298

HEARING DATE(S): 20 October 2010

JUDGMENT DATE:
17 December 2010

JUDGMENT OF: Simpson J at 1; Hoeben J at 2; RA Hulme J at 3

DECISION: 1. Application for leave to appeal granted.
2. Appeal allowed.
3. The sentence for the offence of supply prohibited drug (8 June – 20 September 2008) of imprisonment for a fixed term of 2 years 6 months from 17 September 2009 and expiring on 16 March 2012 is confirmed.
4. The remaining sentences imposed in the District Court are quashed and the applicant sentenced as follows:
Supply commercial quantity of prohibited drug (14 August 2008): Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of the sentence of 3 years. The sentence is to date from 17 March 2010. The non-parole period will expire on 16 March 2014 and the total term will expire on 16 March 2017.
Supply commercial quantity of prohibited drug (23 April – 24 July 2008): Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of the sentence of 3 years 6 months. The sentence is to date from 17 September 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 16 September 2014. The total term will expire on 16 March 2018.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - relevance of evidence of good character - youth - good prospects of rehabilitation - whether error in assessment of objective seriousness of offence - whether error in approach to standard non-parole period - sentence manifestly excessive

LEGISLATION CITED: Drugs Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Bankruptcy Act 1966 (Cth)

CATEGORY: Principal judgment

CASES CITED: Dunn v R [2010] NSWCCA 128
Hutton v R [2008] NSWCCA 99
Majid v R [2010] NSWCCA 121
McIvor v R [2010] NSWCCA 7
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Pfeiffer v R [2009] NSWCCA 145
R v Baker [2000] NSWCCA 85
R v Barlow [2010] NSWCCA 215
R v BCC [2006] NSWCCA 130
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Jamieson Vincent [2006] NSWCCA 276
R v JRD [2007] NSWCCA 55
R v Kennedy [2000] NSWCCA 527
R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
R v McEvoy [2010] NSWCCA 110
R v Smith [2006] NSWCCA 129
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Regina v Way [2004] NSWCCA 131; 60 NSWLR 168
Ryan v The Queen (2001) 206 CLR 267
SKA v R; R v SKA [2009] NSWCCA 186
Sorbello v R [2006] NSWCCA 225
Wong v The Queen [2001] HCA 64; 207 CLR 584

PARTIES: Cameron Antony Ellis (Applicant)
Regina (Respondent)

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 Ellis v R

Details

AGLC: Ellis v R [2010] NSWCCA 298
Case: [2010] NSWCCA 298
Decision Date: 17 December 2010

CaseChat Overview and Summary

The appellant, Ellis, was convicted of supplying a commercial quantity of ecstasy and appealed against the severity of his sentence. The sentence imposed was imprisonment for a term of nine years and six months with a non-parole period of six years and three months. The Court of Appeal considered the legal issues pertinent to the appeal, specifically whether there was an error in assessing the objective seriousness of the offence and whether there was an error in the approach to determining the standard non-parole period. The court also evaluated the relevance of the appellant's good character and youth, as well as his prospects of rehabilitation.

The court examined the evidence presented during the trial and found no error in the assessment of the objective seriousness of the offence. It was determined that the quantity of drugs involved warranted a significant penalty. However, the court found an error in the approach to determining the standard non-parole period. The court held that the sentencing judge did not adequately consider the mitigating factors, including the appellant's good character, youth, and prospects of rehabilitation. The court held that the sentence was manifestly excessive due to this error, and the appeal was allowed. The case was remitted to the sentencing judge for reconsideration of the sentence.

The Court of Appeal ordered that the appeal against the severity of sentence be allowed. The conviction was upheld, but the sentence was quashed, and the matter was remitted to the sentencing judge for re-sentencing. The court emphasised the importance of considering all relevant mitigating factors, including good character, youth, and prospects of rehabilitation, when determining an appropriate sentence. The court also highlighted the need for a clear and reasoned approach to setting the non-parole period, ensuring it aligns with the overall sentencing principles.

Orders