PARTIES: 2009/8982 Robert Leslie Gore (Applicant) Regina (Crown/Respondent) 2009/8916 Tracey Lee Hunter (Applicant) Regina (Crown/Respondent)
JUDGMENT OF: Handley AJA Adams J Howie AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2009/8916
LOWER COURT JUDICIAL OFFICER: McLoughlin SC DCJ
COUNSEL: C Bruce SC (Applicant Gore) C Loukas (Applicant Hunter) S Dowling (Crown/Respondent)
SOLICITORS: S E O'Connor, Legal Aid NSW (Applicants) S Kavanagh, Solicitor for Public Prosecutions (Crown/Respondent)
CATCHWORDS: Sentence appeal – offences under ss 24A, 25A and 36Z Drug Misuse and Trafficking Act 1985 – Inherent and aggravating features of offences – Significance of use of “fortified” premises – Whether offences committed in company – Assessment of objective seriousness – Whether applicable sentencing range – Significance of maximum penalty.
Application for leave be granted and the appeal allowed.
The sentence imposed in the District Court is quashed.
In lieu the applicant is sentenced to a term of imprisonment comprising a non-parole period of 3 years 4 months and a balance of term of 14 months. The sentence is to commence on 13 March 2009 and the non-parole period is to expire on 12 July 2012, the date upon which the applicant is entitled to be considered for release to parole. 2009/8916 - HUNTER See R v Hunter [2010] NSWCCA 270
Leave to appeal is granted;
the sentences imposed in the District Court are quashed;
in lieu of the sentences imposed, the applicant is sentenced, in respect of each offence, taking into account on the first offence the matter in the Form 1 document, a fixed term commencing on 13 March 2009 and expiring 23 November 2010. The consequence is that the applicant is to be released immediately.
JUDGMENT:
IN THE COURT…
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 Gore v R; Hunter v R
Sign in free to access the full text
Details
AGLC
Gore v R; Hunter v R [2010] NSWCCA 330
Case
[2010] NSWCCA 330
Decision Date
CaseChat Overview and Summary
The Court of Criminal Appeal in New South Wales heard appeals from Gore and Hunter against their respective sentences imposed for drug-related offences. Gore was convicted under sections 24A, 25A, and 36Z of the Drug Misuse and Trafficking Act 1985, while Hunter faced charges related to drug offences. Both appellants contested the severity of their sentences, arguing that they were manifestly excessive. The primary issues before the court were whether the sentencing judge erred in considering certain aggravating factors and whether the sentences imposed were appropriate in light of the circumstances.
The court began by examining the sentencing judge's reliance on certain aggravating factors. Specifically, the court scrutinized the judge's finding that the offences were committed in company, which was deemed an improper application of section 21A(2) of the Crimes (Sentencing Procedure) Act 1999. The court noted that the aggravating factor of committing an offence in company should relate to the presence of others to convey a threat of violence, rather than simply the presence of another person involved in the offending. The court emphasized that this principle had been consistently upheld in previous decisions, and it was inappropriate for the sentencing judge to apply it in this manner. Moreover, the court found that the prosecutor's submissions contributed to this error, highlighting the need for legal practitioners to understand and correctly apply statutory provisions.
In addition to the inappropriate application of aggravating factors, the court assessed the overall severity of the sentences. The court found that the sentencing judge had not adequately considered the possibility of a non-custodial sentence for Gore, despite ample evidence suggesting that such a disposition could have been justified. The court also noted that the judge's assessment of the seriousness of Gore's offences appeared to focus more on the drug operation as a whole, rather than the specific offences to which Gore had pleaded guilty. Consequently, the court concluded that the sentence imposed was manifestly excessive.
The Court of Criminal Appeal allowed both appeals and quashed the sentences imposed on Gore and Hunter. In doing so, the court ordered that the appeals be remitted to the District Court for resentencing, with appropriate consideration given to the principles outlined in the judgment.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
This is a troubling history, fairly typical of drug addicts, but none of his convictions approach in seriousness the instant offence.The evidence of the two offenders Gore gave evidence in the sentencing proceedings, as did Hunter, his partner who was also charged with drug offences (to which I will come in due course). The prosecutor and, it seems, the sentencing judge apparently accepted that both were candid witnesses. Gore testified that he first started to drink and use cannabis in 1989 after a woman with whom he was in a relationship was hit by a train and killed. He said that in 1995 he hurt his back in a motor vehicle accident and, despite having a spinal fusion, problems with his back continued. In 2000 he had a further operation on his back but this did not rectify his problems. He said that, other methods of pain relief having failed, he started to use heroin in 1995 or 1996 to manage his pain. It was because of his addiction to this drug that he committed most of the offences of which he was convicted since that time. In addition to heroin, he was using morphine and any other pain killers that he could obtain. After he met his partner, he stopped using heroin but started using other pain medications like morphine or Oxycodone. He also used amphetamines but frankly admitted that this did not have any analgesic effect. Gore testified that he started to supply drugs to other people in a business that grew as time went on. He said that he was responsible for its day to day running, sourcing the drugs and controlling the money including fortifying the premises for fear of drug rip offs. He said that much of the money he received from the sale of drugs was gambled, but some was also used for obtaining other medications. Hunter used amphetamines as well. Gore purchased pain medication illegally and regularly exchanged drugs for pain medication. Gore said that it was because of him that Hunter started taking drugs and found herself before the Court. He accepted that she had been hurt and other people as well because people who purchased drugs got money for them in a wide variety of ways from gambling up to armed robbery and he knew that he had been receiving goods stolen by his clients to pay for their drug supply. He said that the $3,880 found by the Police was “probably six weeks’ worth of savings” after purchasing his own drugs, the black market sourcing of prescription drugs and gambling. He conceded that the business was “lucrative” and open for business “24 hours a day”, when people placed an order for drugs it would be “available … pretty much … straight away” since it was “pretty much … on hand ready to supply”. The learned sentencing judge (rightly, if I may say so) described Gore as in charge of the business.The objective circumstances So far as the extent of Gore’s drug trading was concerned, the four transactions with the undercover police officers did not suggest a major operation. The quantities involved were consistent with sales to users rather than, as it were, wholesale supplies to dealers. The extent of the business, on the Crown case, was left to be implied by the nature of the premises themselves, which suggested the possession of a quantity of drugs which might attract attention from other unlawful and unwelcome visitors. The amount of money and property found was not insignificant though, of course, much depended on the time frame over which it was collected. Savings of something like $300 a week could not fairly justify the inference that the drug business was substantial. The evidence which enabled the characterisation made by the sentencing judge of the scale of the business came voluntarily from Gore and Hunter who, as I have said, gave evidence in the proceedings. Both made admissions of matters which were not known to police or, at least, alleged in the Crown case. It is ironic that, although they gave evidence intending to mitigate their sentences, it had the overall effect – at least so far as Gore was concerned – of revealing a more serious level of criminality than that which could properly have been inferred from or had been alleged in the prosecution case. The reasons for sentence
Decision
Reasons for decision
With respect, the learned sentencing judge’s conclusion that the applicant’s offences “must attract a fulltime custodial sentence” was incorrect. There was ample material which could have justified a non-custodial disposition of her case and, in my opinion, it was incumbent upon the sentencing judge to consider such an approach. Conclusion It is the inevitable conclusion from his Honour’s assessment of the seriousness of the applicant’s offences that, as Ms Loukas for the applicant has submitted, he was not sentencing her in fact for the offences she to which she had pleaded guilty but for her participation in the drug operation in which her co-offender was the principal actor. It follows that this appeal must succeed. The applicant has been in custody since 13 March 2009 and has, therefore, already served over one year and eight months in prison. There is little point in considering whether a lesser sentence than this should be imposed although I am firmly of the opinion that, even if a non-custodial outcome were rejected, the sentence rightly to be imposed must have been markedly less than that which she has already served. In the ordinary case one might well have needed to consider the question of whether the sentences should be cumulative and, if so, to what extent but, in my view, that would in this case entail an inappropriate artificiality.R v GORE HOWIE AJ: I have read the judgment of Adams J in draft. I gratefully adopt his statement of the facts and circumstances surrounding the sentencing of the applicant. I agree that the sentencing judge was in error in determining the sentence he imposed upon the applicant Gore. So far as the applicant Hunter is concerned, I agree with the reasons given by Adams J which are those for which I joined in the orders already made in respect of her appeal.Misuse of aggravating factors Although the only ground of appeal filed in the case of the applicant Gore was that the sentence was manifestly excessive, it is clear that his Honour erred in his finding as to aggravating factors. It is unfortunate in the extreme that these errors were largely the result of submissions made to his Honour by the prosecutor and acceded to by the applicant’s representative at the sentencing proceedings.In company This Court has frequently encouraged sentencing courts and, hence legal practitioners appearing before them, to take a principled approach to the provisions of s 21A(2) of the Crimes Sentencing (Procedure) Act based upon an understanding that generally the provisions were not intended to change the common law. In R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 it was stated that, if a court takes into account an aggravating feature that was not available at common law, then the court is probably using s 21A(2) incorrectly. That approach should have at least raised a question about whether a factor of aggravation that an offence was committed in company meant that the factor was engaged simply because another person other than the offender was present or engaged in the offending regardless of the nature of the offending or the purpose of the other person’s presence. The common law understanding of “in company” should have informed an appreciation of the nature of the aggravating factor contained in s 21A(2)(e). It relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person. That factor had no application to the applicant simply because he happened to use Ms Hunter to assist in his drug trade. The prosecutor should not have asserted that it did. Prosecutors should not be leading a sentencing court into error by a failure to understand the approach that is to be adopted to s 21A(2) in light of the numerous decisions in this Court in that regard: see McCullough v R [2009] NSWCCA 94.