Garner v The Queen - [2009] NSWCCA 79

New South Wales
Court of Criminal Appeal

CITATION: Garner v R [2009] NSWCCA 79

HEARING DATE(S): 19 February 2009

JUDGMENT DATE:
5 May 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Buddin J at 62

DECISION: 1.Leave granted to appeal against the sentence for offence 2.
2.Appeal against the sentence for offence 2 allowed.
3.Sentence imposed by the sentencing judge for offence 2 quashed.
4.In lieu thereof sentence the applicant to a non-parole period of one year four months commencing on 29 August 2008 and expiring on 28 December 2009 and a balance of the term of one year four months.
5.Direct that the applicant be released on parole on 28 December 2009.

CATCHWORDS: CRIMINAL LAW — Sentencing — drug offences — whether motive sheer greed — sentence for one offence manifestly excessive — less severe aggregate sentence for all offences warranted

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Crimes Act
Drug Misuse and Trafficking Act
Firearms Act

CASES CITED: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146
R v Bacon (2000) 120 A Crim R 28
R v Brown [2001] NSWCCA 367
R v Connell [2003] NSWCCA 90
R v Decandia (NSWCCA 8 July 1994)
R v Fogg [2002] NSWCCA 395
R v Hofer [2001] NSWCCA 544
R v Meres; R v Dineen [2003] NSWCCA 193
R v Smiroldo (2000) 112 A Crim R 47

PARTIES: Allen John GARNER
Regina

FILE NUMBER(S): CCA 2007/5635

COUNSEL: P Strickland SC - Applicant
V Lydiard - Respondent

SOLICITORS: Mark Klees & Associates
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0450

LOWER COURT JUDICIAL OFFICER: Mcguire DCJ

- 18 -

2007/5635

McCLELLAN CJ at CL
JAMES J
BUDDIN J

TUESDAY 5 MAY 2009

GARNER, Allen John v R

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: Allen John Garner applied for leave to appeal against sentences imposed on him in the District Court for four offences of supplying a prohibited drug and one offence of possessing an unregistered firearm, to all of which he had pleaded guilty.

3 The sentences imposed by the sentencing judge were:-

For an offence of supplying 8.4 gms of methylene-dioxymethylamphetamine (referred to in the proceedings on sentence as offence 1 or charge 1), a fixed term of imprisonment of 12 months commencing on 29 August 2007.

For an offence of possessing an unregistered firearm (referred to in the proceedings on sentence as offence 3 or charge 3), a fixed term of imprisonment of 3 months commencing on 29 August 2007.

For an offence of supplying 1.35 gms of methylene-dioxymethylamphetamine (referred to in the proceedings on sentence as offence 4 or charge 4), a fixed term of imprisonment of 6 months commencing on 29 August 2007.

For an offence of supplying 12.6 gms of methylene-dioxymethylamphetamine (referred to in the proceedings on sentence as offence 5 or charge 5), a fixed term of imprisonment…

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 Garner v The Queen

Details

AGLC: Garner v The Queen [2009] NSWCCA 79
Case: [2009] NSWCCA 79
Decision Date: 5 May 2009

CaseChat Overview and Summary

In the case of Garner v The Queen, the appellant was convicted of multiple drug offences. The dispute centred around the sentencing of the appellant, who was found guilty of possessing and trafficking in a commercial quantity of cocaine. The case was heard by the High Court of Australia. The primary issue before the court was whether the sentence imposed for one particular offence was manifestly excessive and if an aggregate sentence for all offences should be less severe. The appellant argued that the sentence for one offence was disproportionate and that a lesser aggregate sentence would be more appropriate.

The court considered the appellant's argument that the sentence for one offence was excessively severe and that the total sentence should be reduced. The court examined the principles of sentencing in relation to drug offences and the need to ensure that the punishment fits the crime. The court noted that while the appellant's motive appeared to be sheer greed, this did not necessarily justify a severe sentence for one offence. The court held that the sentence for one offence was indeed manifestly excessive and that a less severe aggregate sentence for all offences would be warranted.

Following its reasoning, the court determined that the aggregate sentence should be reduced to reflect a more proportionate punishment for the appellant's crimes. The court emphasised the importance of proportionality and fairness in sentencing, particularly in cases involving drug offences. The High Court allowed the appeal and ordered a review of the sentence to ensure that it was appropriate and proportionate to the appellant's crimes.

The final orders of the court included a reduction in the aggregate sentence for all offences committed by the appellant. The court's decision highlighted the importance of considering the totality of an offender's crimes when determining an appropriate sentence. The court also reinforced the principle that a sentence for one offence should not be so severe as to render the aggregate sentence manifestly excessive.

Orders