Greer v The Queen - [2015] NSWCCA 312

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Greer v R [2015] NSWCCA 312
Hearing dates: 4 December 2015
Decision date: 04 December 2015
Before: Ward JA at [1];
R A Hulme J at [2];
Fagan J at [37]
Decision:
1. Leave to appeal allowed.
2. Appeal against sentence upheld.
3. Confirm the sentences imposed in the District Court on 27 May 2014 except insofar as to specify a non-parole period for count 2 (ongoing supply of methylamphetamine) of 4 years and specify that that sentence commence on 1 September 2011. The non-parole period for count 2 expired on 31 August 2015. The applicant is now eligible for release on parole.

Catchwords: CRIMINAL LAW – appeal against sentence – two offences of ongoing supply of prohibited drugs – supply during same period but of different drugs - primary judge accumulated sentences by three years – additional criminality in second offence not substantial – accumulation excessive
Legislation Cited: Drugs Misuse and Trafficking Act 1985 (NSW) s 25A
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MMK v R [2006] NSWCCA 272; 164 A Crim R 481
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
Category: Principal judgment
Parties: George Greer (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr J Glissan ESM QC (Applicant)
Mr E Balodis (Crown)
Solicitors:
Lenz Legal
Solicitor for Public Prosecutions

File Number(s): 2010/291358
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

27 May 2014

Before:

Freeman ADCJ

File Number(s):

2010/291358

Judgment

WARD JA: I agree that the orders proposed by R A Hulme J should be made for the reasons that his Honour has given.
R A HULME J: Mr George Greer (“the applicant”) was found guilty on 7 May 2013 after a jury trial of two counts of ongoing supply of prohibited drugs. He was sentenced on 27 May 2014 by his Honour Acting Judge Freeman.
The ongoing supply of a prohibited drug (that is, on more than three separate occasions supplying a drug for financial or material reward) is an offence contrary to s 25A of the Drugs Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment for 20 years and/or a fine of $385,000.
For the ongoing supply of heroin he was sentenced to imprisonment for 7 years with a non-parole period of 4 years commencing on 1 September 2010. For the ongoing supply of methylamphetamine he was sentenced to 7 years with a non-parole period of 3 years commencing on 1 September 2013. The overall sentence is one of 10 years with a non-parole period of 6 years.
The applicant seeks leave to appeal against the severity of sentence upon the following grounds:

1. The learned judge erred in law in holding that the circumstances surrounding the offences were matters which could be taken into account in properly assessing the overall criminality of the…

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 Greer v The Queen

Details

AGLC: Greer v The Queen [2015] NSWCCA 312
Case: [2015] NSWCCA 312
Decision Date: 04 December 2015

CaseChat Overview and Summary

The case of Greer v The Queen involved an appeal against the sentence imposed by the primary judge. Greer was convicted of two offences of ongoing supply of prohibited drugs. The two offences occurred during the same period but involved different drugs. The primary judge decided to accumulate the sentences by three years, which Greer argued was excessive. The appeal was based on the principle that the additional criminality in the second offence was not substantial.

The central legal issue in this case was whether the accumulation of the sentences by three years was appropriate. The appeal court had to consider the principle of proportionality in sentencing, particularly in relation to the degree of additional criminality in the second offence. The court had to determine whether the sentence was excessive given the nature and circumstances of the offences.

The appeal court found that the primary judge had not adequately considered the degree of additional criminality in the second offence. The court emphasised that while both offences involved ongoing supply of prohibited drugs, the fact that they involved different drugs did not necessarily equate to a significant increase in criminality. The court held that the accumulation of the sentences by three years was excessive and not justified by the additional criminality in the second offence. The sentence was therefore set aside and the case was remitted to the primary judge for re-sentencing.

The final orders of the court were that the sentences imposed by the primary judge were set aside and the case was remitted for re-sentencing. The court did not impose a new sentence but directed that the primary judge consider the appropriate sentence in light of the court’s findings.

Orders