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Fitzpatrick v R

Fitzpatrick v R

Case [2010] NSWCCA 26 24 February 2010

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New South Wales
Court of Criminal Appeal

CITATION: FITZPATRICK, Sharon Lee v R [2010] NSWCCA 26

HEARING DATE(S): 12 February 2010

JUDGMENT DATE:
24 February 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 1; Harrison J at 7

DECISION: Leave to appeal refused.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – supplying prohibited drug (methylamphetamine) – whether trial judge erred in not accepting as a matter of mitigation the circumstances of the applicant’s drug addiction from a young age – whether trial judge erred in not adjusting the overall non-parole and parole period sufficiently for special circumstances after indicating there were special circumstances – no error found – leave to appeal refused.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Clarke v R [2009] NSWCCA 49
House v The King [1936] HCA 40; (1936) 55 CLR 499
R v Cramp [2004] NSWCCA 264
R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90
R v P [2004] NSWCCA 218
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Sutton [2004] NSWCCA 225
SS v R; JC v R [2009] NSWCCA 114

PARTIES: Sharon Lee Fitzpatrick (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/10090

COUNSEL: C T Loukas (Applicant)
F A Veltro (Respondent)

SOLICITORS: S E O'Connor, Solicitor for Legal Aid New South Wales (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/11/1037; 07/61/0137

LOWER COURT JUDICIAL OFFICER: Frearson DCJ

LOWER COURT DATE OF DECISION: 1 April 2009 (date of sentence)

2008/10090

McCLELLAN CJ at CL
HOWIE J
HARRISON J
24 February 2010

Sharon Lee FITZPATRICK v R

Judgment

1 McCLELLAN CJ at CL and Howie J: We agree with Harrison J that the appeal to this Court cannot succeed for the reasons given by his Honour. However we would refuse leave to appeal.

2 The applicant had no prospect of the Court intervening to impose a lesser sentence even if she had convinced this Court of error by the sentencing judge. The sentence for the first offence was a fixed tem of 16 months. It commenced from 2 October 2007. As a sentence standing alone, although lenient, no argument could be made against it, the 16 months being, presumably, the equivalent of a non-parole period. However the second sentence commenced on 2 April 2008, that is 6 months after the commencement of the first sentence.

3 While accepting that the structuring of sentences and the determination of the totality of criminality are matters of discretion, we cannot accept that an effective sentence of 6 months was appropriate to reflect the criminality of the first offence. In the final result the applicant received a total sentence of 5 years 4 months with a non-parole period of 3 years 9 months, for the whole of the criminality involved in two serious drug offences, one committed in May 2007 and the other committed in October 2007 when she was on…

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 Fitzpatrick v R

Details

AGLC: Fitzpatrick v R [2010] NSWCCA 26
Case: [2010] NSWCCA 26
Decision Date: 24 February 2010

CaseChat Overview and Summary

The appellant, Fitzpatrick, sought to appeal against his conviction and sentence for supplying a prohibited drug, specifically methylamphetamine. The case was heard in the High Court of Australia. The primary issue before the court was whether the trial judge erred by not considering the appellant's drug addiction, which began at a young age, as a matter of mitigation. Additionally, the court had to determine if the trial judge was wrong in not sufficiently adjusting the non-parole and parole periods due to special circumstances, after acknowledging that such circumstances existed.

The court examined the trial judge’s sentencing remarks and the arguments presented regarding the appellant's addiction. It found that while the trial judge had acknowledged the special circumstances, including the appellant's drug addiction, this did not necessarily mean that these circumstances warranted a different sentence. The trial judge had carefully considered all relevant factors and had given appropriate weight to the appellant's addiction when determining the sentence. The court concluded that the trial judge did not err in the manner in which the sentence was imposed.

In light of the above, the court held that there was no basis for finding that the trial judge had erred in his assessment of the mitigating factors or in adjusting the sentence for special circumstances. Consequently, the appeal was dismissed, and leave to appeal was refused. The original conviction and sentence remained in place.

Orders