Es v R

Case [2014] NSWCCA 268 28 November 2014

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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 family
Legislation 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 25
Cases 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 460
Category: 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…

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 Es v R

Details

AGLC: ES v The Queen [2014] NSWCCA 268
Case: [2014] NSWCCA 268
Decision Date: 28 November 2014

CaseChat Overview and Summary

In the case of Es v R, the appellant was convicted and sentenced for a criminal offence. The appellant sought to appeal the sentence imposed upon him. The primary issue before the court was whether the 40 per cent discount for assistance and plea was appropriate. Additionally, the court needed to determine whether the appropriate ratio between the head sentence and the non-parole period was applied, and if suitable weight was given to the appellant's custodial conditions and the hardship experienced by his family.

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