Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Gilmour v R [2018] NSWCCA 295 Hearing dates: 30 November 2018 Date of orders: 12 December 2018 Decision date: 12 December 2018 Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Campbell J at [84]Decision: 1. Leave to appeal against sentence granted.
2. Appeal dismissed.Catchwords: CRIMINAL LAW – appeal against sentence – serious drug supply offences – sentencing Judge erred in invoking concept of exceptional circumstances on sentence for drug supply offences – applicant sentenced before decision in Parente v R [2017] NSWCCA 284 – error conceded by the Crown – Court to exercise sentencing discretion under s.6(3) Criminal Appeal Act 1912 – no lesser sentence warranted – appeal dismissed Legislation Cited: Crime (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985Cases Cited: Aslan v R [2014] NSWCCA 114
Dayment v R [2018] NSWCCA 132
Hanley v R [2018] NSWCCA 262
Hiron v R [2018] NSWCCA 10
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Parente v R [2017] NSWCCA 284
R v Clark (unreported, Court of Criminal Appeal, 15 March 1990)Texts Cited: --- Category: Principal judgment Parties: Jeffrey Robert Gilmour (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Ms S Kluss (Applicant)
Ms B Baker (Respondent)
LY Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2014/262549 Publication restriction: --- Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- ---
- Citation:
- ---
- Date of Decision:
- 19 May 2017
- Before:
- His Honour Judge McLennan SC
- File Number(s):
- 2014/262549
Judgment
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HOEBEN CJ at CL: I agree with Johnson J.
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JOHNSON J: The Applicant, Jeffrey Robert Gilmour, seeks leave to appeal with respect to an aggregate sentence imposed at the Sydney District Court on 19 May 2017 for a number of serious drug supply offences.
The Offences, Indicative Sentences and Aggregate Sentence
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The Applicant pleaded guilty to two counts of supplying not less than the large commercial quantity of a prohibited drug, N-(2-methoxylbenzyl)-2, 5-dimethoxy-4-chlorophenethylamine (“25C-NBOMe”) contrary to s.25(2) Drug Misuse and Trafficking Act 1985 (“DMT Act”), for each of which the maximum penalty is life imprisonment with a standard non-parole period of 15 years.
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The Applicant requested the sentencing court to take into account (on a Form 1) on sentence for Count 2 two further offences:
Sequence 2 – supplying an indictable quantity of a prohibited drug, cannabis leaf (450 grams), for which the maximum penalty (if prosecuted separately) is imprisonment for 15 years;
Sequence 7 - supplying a commercial quantity of a prohibited drug, ecstasy (144.3 grams), for which the maximum penalty (if prosecuted separately) is imprisonment for 20 years with a standard non-parole period of 10 years.
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The sentencing Judge nominated the following indicative sentences:
Count 1 - supplying a large commercial quantity of a prohibited drug, 25C-NBOMe (102 tablets - 24.6 grams) - imprisonment…
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- Gilmour v R [2018] NSWCCA 295
- Case
- [2018] NSWCCA 295
- Decision Date
CaseChat Overview and Summary
The court considered the sentencing discretion available under section 6(3) of the Criminal Appeal Act 1912. Given the conceded error and the principles outlined in Parente v R, the court assessed whether a lesser sentence was warranted. The appeal court determined that the error did not lead to a situation where a lesser sentence should be imposed. The seriousness of the offences and the need for general deterrence supported the original sentence.
The appeal was dismissed, and the original sentence was upheld. The court emphasised that the primary judge's consideration of exceptional circumstances, albeit erroneous, did not result in an unjust outcome. The appeal court exercised its discretion under the Criminal Appeal Act and found no basis for altering the sentence imposed by the primary judge.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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