Gilmour v R - [2018] NSWCCA 295

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 1985
Cases 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:
Ms S Kluss (Applicant)
Ms B Baker (Respondent)
Solicitors:
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

HOEBEN CJ at CL: I agree with Johnson J.
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

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.
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.

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…

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 Gilmour v R

Details

AGLC: Gilmour v R [2018] NSWCCA 295
Case: [2018] NSWCCA 295
Decision Date: 12 December 2018

CaseChat Overview and Summary

In the case of Gilmour v R, the applicant, Gilmour, appealed against his sentence for serious drug supply offences. The appeal was heard in the New South Wales Court of Criminal Appeal. The central issue was whether the primary judge had erred in invoking the concept of exceptional circumstances when determining Gilmour's sentence. The Crown conceded that the primary judge had indeed erred by not waiting for the decision in Parente v R [2017] NSWCCA 284, which provided further guidance on the application of exceptional circumstances in drug supply cases.

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