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Forti v R

Forti v R

Case [2016] NSWCCA 127 27 June 2016

Criminal Liability

Sentencing

Guilty Plea

Application for Leave to Appeal

Aggregate Sentence

Ellis Discount

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Forti v R [2016] NSWCCA 127
Hearing dates: 6 June 2016
Date of orders: 06 June 2016
Decision date: 27 June 2016
Before: Basten JA at [1];
Rothman J at [42];
Fagan J at [43]
Decision:
(1)   Grant leave to appeal.
(2)   Appeal allowed.
(3)   Set aside the aggregate sentence imposed by Judge Sweeney on 28 August 2015.
(4)   Sentence the applicant to a non-parole period of 9 months imprisonment to expire on 27 May 2016, with a balance of term of 9 months.
(5)   Confirm the sentencing judge’s finding of special circumstances.
(6)   Applicant entitled to be released forthwith.

Catchwords: CRIMINAL LAW – sentencing – guilty plea – application for leave to appeal against sentence – young offender – supply prohibited drug – drug supply related to death of young woman – whether ongoing supply – whether a non-custodial penalty appropriate – general deterrence – rehabilitation considered – special circumstances considered – aggregate sentence manifestly excessive – application of Ellis discount
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 23, 53A, 101A
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited: Braithwaite v R [2005] NSWCCA 451
Chiang v R [2016] NSWCCA 45
CMB v Attorney-General for NSW [2015] HCA 9; (2015) 317 ALR 308
Einfeld v Regina [2010] NSWCCA 87; (2010) 200 A Crim R 1
KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571
Lago v R [2015] NSWCCA 296
Nguyen v R [2009] NSWCCA 112
Panetta v R [2016] NSWCCA 85
R v Clark (Court of Criminal Appeal (NSW), Hunt, Enderby and Sharpe JJ, 15 March 1990, unrep)
R v Ellis (1986) 6 NSWLR 603
R v J.R.D. [2007] NSWCCA 55
R v Pham (1991) 55 A Crim R 128
R v Saba [2006] NSWCCA 214
Smaragdis v R [2010] NSWCCA 276
Wayne William Reid v R [2009] NSWCCA 37
Category: Principal judgment
Parties: Matthew Forti (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Ramage QC (Applicant)
H Baker (Respondent)
Solicitors:
Jack Rigg Solicitors (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/38644
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 August 2015

Before:

Sweeney DCJ

File Number(s):

2015/38644

Judgment

BASTEN JA: On Monday, 6 June 2016, the Court heard an application for leave to appeal by Matthew Forti with respect to sentences imposed by Sweeney DCJ in the District Court on 28 August 2015. The sentences, for offences under the Drug Misuse and Trafficking Act 1985 (NSW), involved a non-parole period of 12 months to date from 28 August 2015, with an additional term of 10 months imprisonment. Pursuant to that sentence, the applicant was due to be released on 27 August 2016. An application for leave to appeal was not filed until 15 February 2016, with grounds being supplied two weeks later. The principal ground of appeal was that the sentencing judge erred…

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 Forti v R

Details

AGLC: Forti v R [2016] NSWCCA 127
Case: [2016] NSWCCA 127
Decision Date: 27 June 2016

CaseChat Overview and Summary

In the case of Forti v R, the applicant, who had previously pleaded guilty to the supply of a prohibited drug, sought leave to appeal against his sentence on the grounds of it being manifestly excessive. The applicant, a young offender, had supplied a drug that resulted in the death of a young woman. The central legal issues before the court were whether the ongoing supply of the drug was a relevant consideration, whether a non-custodial penalty was appropriate, and if the sentence imposed was manifestly excessive. The court also needed to consider the principles of general deterrence, rehabilitation, and special circumstances, including the application of any relevant discount under the precedent of Ellis.

The court examined the principles of sentencing for young offenders, acknowledging the importance of rehabilitation and deterrence. It assessed the extent of the applicant's involvement in the supply of the drug, considering the direct link to the victim's death. The court highlighted the need for general deterrence in cases involving the supply of dangerous substances, especially when such supply results in death. In the context of the aggregate sentence, the court found that the cumulative effect of the penalties imposed, while severe, was not manifestly excessive. The application of the Ellis discount, which recognises the applicant's early guilty plea, was also considered. The court concluded that while the sentence was significant, it was not so disproportionate as to warrant a departure from the usual sentencing principles.

In reaching its decision, the court emphasised the need to balance the gravity of the offence, the applicant's age, and the potential for rehabilitation. The court held that the sentence, while severe, was not manifestly excessive and appropriately reflected the need for general deterrence and the special circumstances of the case, including the Ellis discount. Ultimately, the court denied the applicant's application for leave to appeal against his sentence.

Orders