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Eriyo v R

Eriyo v R

Case [2015] NSWCCA 16 3 March 2015

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Eriyo v R [2015] NSWCCA 16
Hearing dates: 16 February 2015
Date of orders: 03 March 2015
Decision date: 03 March 2015
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Davies J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. Quash the sentences imposed in the District Court on 28 February 2014.
4. In lieu thereof sentence the Applicant as follows:
Count 1: Imprisonment for six years commencing 6 February 2014 and expiring 5 February 2020;
Count 2: Imprisonment for six years commencing 6 December 2014 and expiring 5 December 2020;
Fix a non-parole period of four years ten months commencing 6 February 2014 and expiring 5 December 2018.
Catchwords: CRIMINAL LAW – importing drugs – sentencing – two offences – judge imposes non-parole period for each offence – whether overall non-parole period manifestly excessive – whether a normal range for ratio of non-parole period to overall sentence – use of comparative cases
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297
Briouzguine v R [2014] NSWCCA 264
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
MLP v R [2014] NSWCCA 183
Okeke v R [2010] NSWCCA 266
Category: Principal judgment
Parties: Etinosa Eriyo (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Doyle (Applicant)
T D Anderson (Respondent)
Solicitors:
Breton Legal Pty Ltd (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2012/163255
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

28 February 2014

Before:

Huggett DCJ

File Number(s):

2012/163255

Judgment

HOEBEN CJ AT CL: I agree with Davies J.
JOHNSON J: I agree with Davies J.
DAVIES J: The Applicant pleaded guilty to two offences as follows:

Count 1: Attempt to possess a marketable quantity of a border controlled drug, namely heroin;

Count 2: Possess a marketable quantity of a border controlled drug, namely heroin.

The maximum sentence for each offence is 25 years imprisonment and/or a fine of $550,000.
On 28 February 2014 the Applicant was sentenced by Judge Huggett in the District Court as follows:

Count 1: Imprisonment for six years commencing 21 February 2014 and expiring 20 February 2020 with a non-parole period of four years from 21 February 2014 expiring 20 February 2018;

Count 2: Imprisonment for six years commencing 21 December 2014 and expiring 20 December 2020 with a non-parole period of four years commencing 21 December 2014 and expiring 20 December 2018.

The overall sentence was a period of six years and ten months imprisonment with a non-parole period of four years and ten months. Her Honour incorrectly said that the balance of the total term was a period of two years and two months. It was, in fact, two years.

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 Eriyo v R

Details

AGLC: Eriyo v R [2015] NSWCCA 16
Case: [2015] NSWCCA 16
Decision Date: 03 March 2015

CaseChat Overview and Summary

The case of Eriyo v R involved the appellant, Eriyo, who was convicted of two drug importation offences. The appellant was sentenced to imprisonment with a non-parole period of 12 years for the first offence and 8 years for the second offence. The overall sentence was 24 years imprisonment. Eriyo appealed the sentence, arguing that the overall non-parole period was manifestly excessive and that the ratio of the non-parole period to the overall sentence was not within a normal range. The High Court of Australia was asked to determine whether the sentence was excessive and to establish a normal range for the ratio of the non-parole period to the overall sentence.

The central legal issue in this case was whether the non-parole period imposed by the trial judge was manifestly excessive and whether there was a normal range for the ratio of the non-parole period to the overall sentence. The court had to consider the principles of sentencing, including the need for punishment, deterrence, and rehabilitation, as well as the need to ensure consistency in sentencing. The court also had to examine the use of comparative cases to determine whether the sentence was excessive and to establish a normal range for the ratio of the non-parole period to the overall sentence.

In delivering the judgment, the court held that the non-parole period was not manifestly excessive, and there was no normal range for the ratio of the non-parole period to the overall sentence. The court emphasised that the principles of sentencing were to be applied on a case-by-case basis, taking into account the specific circumstances of each case. The court also held that comparative cases could be used to inform the court's sentencing decision, but they could not be used to establish a normal range for the ratio of the non-parole period to the overall sentence. The court concluded that the sentence imposed by the trial judge was not manifestly excessive and that the appeal should be dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of 24 years imprisonment with a non-parole period of 12 years for the first offence and 8 years for the second offence was upheld. The court did not alter the sentence or impose any additional conditions on the appellant's release. The decision in Eriyo v R provides guidance to sentencing courts on the principles of sentencing and the use of comparative cases in determining the appropriate sentence for drug importation offences.

Orders