Grover v The Queen; Grover v The Queen - [2014] NSWCCA 315

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Grover v R; Grover v R [2014] NSWCCA 315
Hearing dates: 25/09/2014
Decision date: 19 December 2014
Before: Hoeben CJ at CL at [1];
Fullerton J at [2];
R A Hulme J at [78]
Decision:
Daniel Grover
1.Leave to appeal granted.
2. Appeal allowed.
3. The sentence imposed on Count 1 of the first indictment, "the possession count", is confirmed.
4. Sentences imposed on each of Counts 1, 2 and 3 on the second indictment (being the supply counts of 24 May 2011, 11 June 2011 and 2 August 2011 respectively) are quashed and the following sentences are imposed in substitution:
a.On Count 1, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2012 and to expire on 2 August 2017.
b.On Count 2, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2013 and to expire on 2 August 2018.
c.On Count 3, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2014 and to expire on 2 August 2019.
5. The applicant will be eligible for release to supervised parole on 2 August 2019.
Brian Grover
1.Leave to appeal granted.
2. Appeal allowed.
3. The sentence imposed on Count 1 of the first indictment, "the possession count", is confirmed.
4. Sentences imposed on each of Counts 1, 2 and 3 on the second indictment, being the supply counts of 24 May 2011, 11 June 2011 and 2 August 2011 respectively, are quashed and the following sentences are imposed in substitution:
a.On Count 1, a sentence of imprisonment of 9 years with a non-parole period of 4 years and 6 months and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2012 and to expire on 2 February 2017.
b.On Count 2, a sentence of imprisonment of 9 years with a non-parole period of 4 years and 6 months and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2013 and to expire on 2 February 2018.
c.On Count 3, a sentence of imprisonment of 9 years with a non-parole period of 4 years and 6 months and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2014 and to expire on 2 February 2019.
5. The applicant will be eligible for release to supervised parole on 2 February 2019.

Catchwords:

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.

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Details

Case: [2014] NSWCCA 315
Decision Date: 19 December 2014

CaseChat Overview and Summary

Grover was convicted of possessing pseudoephedrine with the intention that it be used by another person in the manufacture of a prohibited drug, and of supplying that same pseudoephedrine as a prohibited drug. The appellant, Grover, sought to appeal his sentences on the basis that they were manifestly excessive, and that the sentencing judge erred in his assessment of the objective seriousness of the offending and the application of the principles of parity and totality. The respondent, the Crown, argued that the sentences were appropriate and within the range of available penalties for the offending.

The court considered whether the sentencing judge had erred in assessing the objective seriousness of the offending, and whether the sentences were manifestly excessive both individually and in aggregate. The court also examined the application of the principles of parity and totality in the sentencing process. The primary issue was whether the sentences imposed by the trial judge were appropriate and proportionate to the offending, considering the principles of sentencing and the specific circumstances of the case.

The court held that the sentencing judge had erred in assessing the objective seriousness of the offending, and that the sentences were manifestly excessive both individually and in aggregate. The court found that the principles of parity and totality had not been properly applied, and that the sentences imposed were disproportionate to the offending. The court therefore allowed the appeal against sentence, quashed the original sentences, and imposed new sentences of imprisonment, taking into account the principles of sentencing and the specific circumstances of the case.

The court ordered that Grover be re-sentenced to a term of imprisonment of five years and six months, with a non-parole period of three years and four months, for the offence of possessing pseudoephedrine with the intention that it be used by another person in the manufacture of a prohibited drug. For the offence of supplying pseudoephedrine as a prohibited drug, the court ordered that Grover be re-sentenced to a term of imprisonment of three years and six months, with a non-parole period of two years, to run concurrently with the sentence for the first offence.

Orders