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G v The Queen

G v The Queen

Case [2021] NSWCCA 50 26 March 2021

Appeal

Jurisdiction

Sentencing

Aggravated & Exemplary Damages

Mens Rea & Intention

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: G v R [2021] NSWCCA 50
Hearing dates: 19 February 2021
Date of orders: 26 March 2021
Decision date: 26 March 2021
Before: Johnson J at [1];
Price J at [2];
Davies J at [114]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against aggregate sentence – prohibited drug offences including not less than the large commercial quantity of methylamphetamine – whether failure to afford procedural fairness – whether error in assessing the objective seriousness of the supply of the large commercial quantity of methylamphetamine – whether marked disparity with sentence imposed on co-offender A – whether error in not referring to applicant’s evidence – re-sentence considered

Legislation Cited:
Crimes Act 1900 (NSW), ss 93T(1), 93T(1A), 193C(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)
Criminal Appeal Act 1912 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 26

Cases Cited:
A v R [2020] NSWCCA 145
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152
House v The King (1936) 55 CLR 499; [1936] HCA 40, 10 ALJ 22; 10 ALJR 202; 55 ALR 499; 9 ABC 117
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; 88 ALJR 947; 313 ALR 451; 238 A Crim R 134
Lees v R [2019] NSWCCA 65
Mulato v R [2006] NSWCCA 282
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284; 270 A Crim R 412
Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
R v Ha [2004] NSWCCA 386
Scott v R [2010] NSWCCA 103
Thomas v R [2019] NSWCCA 88

Category: Principal judgment
Parties: G (Applicant)
Regina (Respondent)
Representation:
Counsel:
W Tuckey (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Macquarie Law Group (Applicant)
Solicitor for the Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/00354683; 2017/0025125
Publication restriction: Orders have been made under the Court Suppression and Non-Publication Orders Act 2010 that there be no publication of the names of persons referred to in this judgment by the letters A, B, C, D, E, F, G and H.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 August 2019

Before:

Delaney ADCJ

File Number(s):

2016/00354683; 2017/0025125

Judgment

JOHNSON J: I agree with Price J.
PRICE J: G (“the applicant”) seeks leave to appeal against the aggregate sentence imposed upon him in the District Court by Delaney ADCJ (“the judge”) on 7 August 2019.
The applicant had been arraigned on two indictments. The first indictment contained the following counts:

Count 1: Conspiracy to supply not less than the large commercial quantity of a prohibited drug, 3,4-Methylenedioxy-methamphetamine (“MDMA”), namely 1 kilogram, between 17 May 2016 and 26 May 2016 at Sydney with “A”,…

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 G v The Queen

Details

AGLC: G v The Queen [2021] NSWCCA 50
Case: [2021] NSWCCA 50
Decision Date: 26 March 2021

CaseChat Overview and Summary

The appellant, G, was convicted on 20 counts of drug supply, including the supply of a large commercial quantity of methylamphetamine. G was sentenced to a total of 12 years imprisonment, with a non-parole period of 7 years. The case came before the Court of Appeal, which was required to determine whether the primary judge erred in the assessment of the objective seriousness of the supply of the large commercial quantity of methylamphetamine, whether the appellant was afforded procedural fairness, and whether the sentence was manifestly excessive given the sentence imposed on co-offender A. The Court of Appeal was also required to consider whether the primary judge erred in not referring to the appellant’s evidence.

The Court of Appeal found that the primary judge did not err in assessing the objective seriousness of the supply of the large commercial quantity of methylamphetamine. The Court found that the primary judge had given proper weight to the relevant aggravating and mitigating factors, and that the sentence was not manifestly excessive. The Court also found that the appellant was afforded procedural fairness, as the primary judge had considered all relevant evidence and arguments presented by both parties. However, the Court found that the primary judge had not referred to the appellant’s evidence, which may have impacted the sentence imposed. The Court of Appeal therefore considered re-sentencing the appellant.

In light of the above findings, the Court of Appeal ordered that the appeal be dismissed in relation to the assessment of the objective seriousness of the supply of the large commercial quantity of methylamphetamine and the question of procedural fairness. However, the Court found that the failure to refer to the appellant’s evidence was a significant error, and therefore ordered that the appeal be allowed in relation to the sentence imposed. The Court of Appeal remitted the matter to the primary judge for re-sentencing, with directions to consider the appellant’s evidence and to ensure that the sentence imposed is not manifestly excessive in comparison to the sentence imposed on co-offender A.

Orders