Finch v The Queen - [2014] NSWCCA 278

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Finch v R [2014] NSWCCA 278
Hearing dates: 8 August 2014
Decision date: 24 November 2014
Before: Simpson J at [1];
Adams J at [2];
R A Hulme J at [3]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - possession for purpose of supply of large commercial supply of lysergide and indictable quantity of methylamphetamine - unusual case - possession not by choice but retained possession for the purpose of supply - asserted errors in assessment by trial judge of seriousness of offence and aspects of subjective case - asserted excessive differential between sentences - error not established - sentences imposed reflected differing maximum penalties - manifest excess not established
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)
Category: Principal judgment
Parties: Stephen John Finch (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms A Francis (Applicant)
Mr N J Adams (Crown)
Solicitors:
Hardinlaw
Solicitor for Public Prosecutions

File Number(s): 2010/291599
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-04-12 00:00:00

Before:

Berman SC DCJ

File Number(s):

2010/291599

Judgment

SIMPSON J: I agree with R A Hulme J.

ADMAS J: I agree with R A Hulme J.

R A HULME J: Stephen John Finch (the applicant) applied for leave to appeal in respect of sentences imposed upon him in the District Court by his Honour Judge Berman SC on 12 April 2013.

For an offence of supplying methylamphetamine contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW) the applicant was sentenced to imprisonment for a fixed term of 2 years dating from 25 November 2012. For an offence of supplying a large commercial quantity of lysergide, commonly known as LSD, contrary to s 25(2) of the same Act, he was sentenced to imprisonment for 8 years with a non-parole period of 5 years dating from 25 November 2013.

The overall sentence was one of 9 years with a non-parole period of 6 years.

His Honour also dealt with an offence of possession of an unregistered firearm (an air rifle) that was before him on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). The applicant was convicted but no penalty was imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). In sentencing the applicant for the offence of supplying LSD, the judge also took into account at the applicant's request four further offences listed on a Form 1 document: possession of cannabis leaf; possession of cannabis resin; not keeping a firearm safely; and possession of ammunition.

Facts

The applicant had pleaded not guilty to the drug supply offences but was found guilty after a jury trial.

The learned sentencing judge recited the facts and the findings that he made as follows:

"Police went to Mr Finch's [home at Pindimar (Port Stephens)] on 1 September 2010 after having…

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 Finch v The Queen

Details

AGLC: Finch v The Queen [2014] NSWCCA 278
Case: [2014] NSWCCA 278
Decision Date: 24 November 2014

CaseChat Overview and Summary

Finch was convicted of possessing a large commercial quantity of lysergide and an indictable quantity of methylamphetamine for the purpose of supply. The case was heard and determined by the High Court of Australia. The appellant appealed against the sentences imposed by the trial judge, arguing that there were errors in the assessment of the seriousness of the offence and aspects of the subjective case. Additionally, the appellant claimed that there was an excessive differential between the sentences imposed for each count.

The court examined the appellant's contention that the trial judge erred in assessing the seriousness of the offence. The court found that the trial judge had correctly assessed the seriousness of the offence, taking into account the large quantities of drugs involved and the appellant's role in the supply chain. The court also considered the appellant's claim that there was an excessive differential between the sentences imposed for each count. The court found that the sentences imposed reflected the differing maximum penalties for each offence and that there was no manifest excess. The court held that the trial judge had not erred in the assessment of the seriousness of the offence or in the imposition of the sentences.

The High Court dismissed the appeal against sentence, affirming the sentences imposed by the trial judge. The court found that the trial judge had correctly assessed the seriousness of the offence and that there was no manifest excess in the sentences imposed. The appellant's appeal was accordingly dismissed, and the sentences imposed by the trial judge were upheld.

Orders