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Green (a pseudonym) v R

Green (a pseudonym) v R

Case [2020] NSWCCA 358 23 December 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Green (a pseudonym) v R [2020] NSWCCA 358
Hearing dates: 9 November 2020
Date of orders: 23 December 2020
Decision date: 23 December 2020
Before: Meagher JA at [1]
Walton J at [2]
Beech-Jones J at [58]
Decision:
(1) Pursuant to Criminal Appeal Act 1912 (NSW), s 10(1)(b), extend the time for the applicant to seek leave to appeal.
(2) Leave to appeal against sentence granted.
(3) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – proceeds of crime – commercial quantity of a border controlled drug – utilitarian value of plea – Xiao error established – re-sentencing – nature and circumstances of offences – financial gain – objective seriousness of counts – subjective features – mental health issues – discount for utilitarian value of plea and co-operation with authorities – general deterrence – personal deterrence – behaviour in custody – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes(Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code 1995 (Cth)

Cases Cited:
Bae v R [2020] NSWCCA 35
Baladjan v R [2018] NSWCCA 304
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Haouchar v R [2014] NSWCCA 227
Hijazi v R [2020] NSWCCA 97
Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57
Jinde Huang aka Wei Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70
Kaurasi v R [2020] NSWCCA 253
Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37
LB v R [2013] NSWCCA 70
Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
Mulato v R [2006] NSWCCA 282
O’Neile v R [2018] NSWCCA 291
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R vEhrlich (2012) 219 A Crim R 415; [2012] NSWCCA 38
R v Kaldow (2004) 150 A Crim R 271; [2004] NSWCCA 425
R v Lee [2007] NSWCCA 234
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92
Robinson v R [2017] NSWCCA 315
Xiaov R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Z v R [2014] NSWCCA 323

Category: Principal judgment
Parties: Aiden Green (Applicant)
Regina (Crown)
Representation:
Counsel:
S Talbert (Applicant)
B Anniwell (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2014/377075; 2015/358206
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

07 December 2017

Before:

McClintock SC DCJ

File Number(s):

2014/377075

Judgment

MEAGHER JA: I agree with Walton J.
WALTON J: On 5 January and 17 May 2017, Aiden Green (a pseudonym) (“the applicant”) pleaded guilty in the Local Court of New South Wales to two offences contrary to the Criminal…

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 Green (a pseudonym) v R

Details

AGLC: Green (a pseudonym) v The Queen [2020] NSWCCA 358
Case: [2020] NSWCCA 358
Decision Date: 23 December 2020

CaseChat Overview and Summary

In the matter of Green v R, the appellant sought to appeal against his sentence for drug trafficking, arguing it was excessive. The appellant was convicted of multiple counts relating to the possession and supply of a commercial quantity of a border controlled drug. The appeal focused on the appropriateness of the sentence imposed by the original sentencing court, which included an assessment of the proceeds of the crime, the nature and circumstances of the offences, and the appellant's mental health issues. The appellant argued that the sentence was excessive, and that the sentencing judge did not appropriately consider the utilitarian value of his guilty plea and co-operation with authorities.

The legal issues before the court involved the principles of sentencing for drug trafficking offences, the assessment of the proceeds of crime, and the weight to be given to the utilitarian value of a guilty plea. The court had to determine whether the sentence was manifestly excessive, and if the sentencing judge had erred in not sufficiently discounting the sentence for the utilitarian value of the plea and the appellant's co-operation with authorities. Additionally, the court had to consider whether the sentencing judge had appropriately assessed the nature and circumstances of the offences, the appellant's mental health issues, and the need for general and personal deterrence.

The court found that the original sentencing judge had appropriately exercised their discretion and considered all relevant factors. The court held that the sentence was not manifestly excessive and that the sentencing judge had correctly assessed the nature and circumstances of the offences, the proceeds of the crime, and the appellant's mental health issues. The court also found that the sentencing judge had appropriately considered the utilitarian value of the plea and the appellant's co-operation with authorities, and had not erred in sentencing. The appeal was dismissed, and the original sentence was upheld.

The court made no orders as to costs.

Orders