Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: ES v R [2014] NSWCCA 268 Hearing dates: 21 July 2014 Decision date: 28 November 2014 Before: Bathurst CJ; Fullerton J; Davies J Decision: 1.Leave to appeal is granted.
2.The appeal is dismissed.
Catchwords: CRIMINAL - appeal - sentence - whether 40 per cent discount for assistance and plea appropriate - late plea - early offers to plea conditional - strong Crown case - relevance of Crown decision following plea to not proceed with retrial of co-offenders
CRIMINAL - appeal - sentence - appropriate ratio between head sentence and non-parole period - whether appropriate weight given to applicant's custodial conditions and hardship to applicant's familyLegislation Cited: Crimes Act 1914 (Cth), Pt 1B
Crimes (Sentencing Procedure) Act 1999 (NSW), s3A
Criminal Code Act 1995 (Cth), s 307.11
Drug Misuse and Trafficking Act 1985 (NSW), ss 24A and 25Cases Cited: Bland v R [2014] NSWCCA 82
DS v R [2014] NSWCCA 267
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Lachlan Wilson v R [2014] NSWCCA 266
LB v R [2013] NSWCCA 70
M v The Queen [2014] NSWCCA 39
Phan, Thanh Dinh v R [2013] NSWCCA 49
R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
R v El Hani [2004] NSWCCA 162
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460Category: Principal judgment Parties: ES (Applicant)
Crown (Respondent)Representation: Counsel:
W Barber (Applicant)
I D Bourke / M England (Crown)
Solicitors:
BPH Legal (Applicant)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2008/83782 Publication restriction: Pursuant to s 7(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the appellant in these proceedings be known by the pseudonym "ES" Decision under appeal
- Date of Decision:
- 2012-07-26 00:00:00
- Before:
- Frearson SC DCJ
- File Number(s):
- 2008/83782
Judgment
THE COURT: The applicant seeks leave to appeal against a sentence imposed in the District Court on 26 July 2012 after he entered a plea of guilty on 8 February 2012 to aiding and abetting, counselling or procuring Lachlan Wilson to import a commercial quantity of pseudoephedrine, a border controlled precursor, contrary to ss 307.11(1) and (2) of the Criminal Code Act 1995 (Cth) (the Code). That offence carries a maximum penalty of 25 years imprisonment, 5,000 penalty units, or both.
On the same day the applicant also entered a plea of guilty to attempting to possess pseudoephedrine, as a precursor, contrary to s 24A of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). That offence carries a maximum penalty of 10 years imprisonment, 2000 penalty units, or both.
Pseudoephedrine is both a border controlled precursor under the Code, and a prohibited drug and a precursor under the DMT Act.
After applying a combined discount of 40 per cent for the pleas…
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- AGLC
- ES v The Queen [2014] NSWCCA 268
- Case
- [2014] NSWCCA 268
- Decision Date
CaseChat Overview and Summary
The court considered the timing of the plea and the circumstances surrounding it. The appellant's plea was made late, and earlier offers to plead were conditional. The Crown had a strong case against the appellant, and the court had to evaluate the relevance of the Crown's decision to not proceed with the retrial of co-offenders following the plea. The court also examined the appropriate weight to be given to the appellant's custodial conditions and the hardship experienced by his family in determining the sentence.
In its judgment, the court found that the discount for assistance and plea was appropriate, given the circumstances of the case. The court determined that the ratio between the head sentence and the non-parole period was appropriate, and that suitable weight was given to the appellant's custodial conditions and the hardship experienced by his family. The appeal was dismissed, and the original sentence was upheld.
The court did not make any additional orders beyond those mentioned in the judgment. The final orders were to dismiss the appeal and uphold the original sentence imposed on the appellant.
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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