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Grogan v The Queen

Grogan v The Queen

Case [2019] NSWCCA 51 18 March 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Grogan v R [2019] NSWCCA 51
Hearing dates: 25 February 2019
Date of orders: 18 March 2019
Decision date: 18 March 2019
Before: Gleeson JA at [1]
Harrison J at [2]
Davies J at [42]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW – appeal against sentence – where appellant sentenced for manufacturing commercial quantity of prohibited drug, supplying commercial quantity of prohibited drug, and knowingly dealing with proceeds of crime – where appellant sentenced to aggregate sentence of 14 years imprisonment with a non-parole period of 10 years – whether in determining the aggregate sentence the sentencing judge erred in the application of the totality principle – whether the sentence imposed upon the applicant resulted in double punishment – whether sentence manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 193B(2)
Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
Cases Cited: Brent Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178
Kwok v R [2018] NSWCCA 200
Pannowitz v R [2016] NSWCCA 13
R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
Soames v R [2014] NSWCCA 158
Category: Principal judgment
Parties: Jason John Grogan (Appellant)
Regina (Respondent)
Representation:
Counsel:
A Djemal (Appellant)
K Ratcliffe (Respondent)
Solicitors:
D Wakim (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2013/385361
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW at Gosford

Jurisdiction:

Criminal

Date of Decision:

17 February 2017

Before:

Buscombe DCJ

Judgment

GLEESON JA: I agree with Harrison J.
HARRISON J: Jason Grogan seeks leave to appeal against the severity of sentences imposed upon him by Buscombe DCJ on 17 February 2017 in the District Court of New South Wales at Gosford. Mr Grogan had pleaded guilty in the Local Court on 6 September 2016, and was committed for sentence, with respect to three offences as follows:

Manufacture large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985. That is an offence for which the maximum penalty is life imprisonment with a standard non-parole period of 15 years.

Supply prohibited drug not less than a large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. That is an offence for which the maximum penalty is life imprisonment with a standard non-parole period of 15 years.

Knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900. That is an offence for which the maximum penalty is imprisonment for 15 years.

His Honour sentenced Mr Grogan to an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years to date from 23 December 2013 and expire on 22 December 2023. His Honour set out the indicative sentences for each offence as follows:

Manufacture prohibited drug: 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 Grogan v The Queen

Details

AGLC: Grogan v The Queen [2019] NSWCCA 51
Case: [2019] NSWCCA 51
Decision Date: 18 March 2019

CaseChat Overview and Summary

In the case of Grogan v The Queen, the appellant was convicted of manufacturing a commercial quantity of a prohibited drug, supplying a commercial quantity of a prohibited drug, and knowingly dealing with the proceeds of crime. The appellant was sentenced to an aggregate term of imprisonment of 14 years, with a non-parole period of 10 years. The appellant brought an appeal against the sentence, arguing that the sentencing judge erred in the application of the totality principle, resulting in double punishment, and that the sentence was manifestly excessive. The High Court of Australia was tasked with determining the validity of the appellant's claims.

The central legal issue before the court was whether the sentencing judge correctly applied the totality principle when determining the aggregate sentence for the appellant's multiple convictions. The appellant argued that the sentence imposed upon them resulted in double punishment, as the cumulative sentences did not take into account the overlap between the offences. Additionally, the appellant contended that the sentence was manifestly excessive, and that the court should exercise its appellate jurisdiction to reduce the sentence. The court was required to examine the sentencing principles and the application of the totality principle in the context of multiple convictions.

The court held that the sentencing judge had correctly applied the totality principle when determining the aggregate sentence for the appellant. The court found that there was no double punishment, as the sentencing judge had considered the overlap between the offences and the appropriate level of punishment. The court also concluded that the sentence was not manifestly excessive, and that the sentencing judge had appropriately balanced the various factors in determining the appropriate term of imprisonment. The appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the court beyond the dismissal of the appeal and the upholding of the original sentence.

Orders