JMS v R - [2010] NSWCCA 229

New South Wales
Court of Criminal Appeal

CITATION: JMS v R [2010] NSWCCA 229

HEARING DATE(S): 8 September 2010

JUDGMENT DATE:
8 October 2010

JUDGMENT OF: Hodgson JA at 1; Price J at 50; Fullerton J at 51

DECISION: (1) Leave to appeal granted.
(2) Appeal allowed.
(3) Sentences below quashed and in lieu thereof order that the applicant be sentenced to imprisonment on count 1 for three and a half years commencing on 14 October 2009, expiring on 13 April 2013, with a non-parole period of eighteen months commencing 14 October 2009 and expiring on 13 April 2011; and on count 2, to imprisonment for three and a half years commencing 14 April 2010 and expiring on 13 October 2013, with a non-parole period of eighteen months commencing 14 April 2010 and expiring on 13 October 2011.

CATCHWORDS: CRIMINAL LAW – Application for leave to appeal against sentence – Parity – Assistance to authorities – Whether appropriate recognition given to assistance.

LEGISLATION CITED: Criminal Appeal Act 1912 s 5DA, s 6(3)

CATEGORY: Principal judgment

CASES CITED: R v Clarke (Court of Criminal Appeal, unreported, 15 March 1990)
R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413
R v Fernando (1992) 76 A Crim R 58
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Tulloh (Court of Criminal Appeal, unreported, 16 September 1993)
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

PARTIES: JMS (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 2009/7694

COUNSEL: J STRATTON SC (applicant)
J PICKERING (Crown)

SOLICITORS: Legal Aid Commission of NSW (applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/1997; 2009/7694

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 22 October 2009

- 13 -

2009/7694

HODGSON JA
PRICE J
FULLERTON J

8 OCTOBER 2010

JMS v R

Judgment

1 HODGSON JA: On 22 October 2009, the applicant and a co-accused Dallas Aspinall appeared in the District Court at Lismore. Each had pleaded guilty to one count of supply of a prohibited drug namely heroin in excess of 250 grams (that being the commercial quantity for that drug) and one count of supply of a prohibited drug namely methylamphetamine in excess of 250 grams (that being the commercial quantity for that drug). In the case of the applicant, the period of the offence was alleged to be between 23 August 2007 and 25 March 2008, and in the case of Mr Aspinall it was alleged to be between 2 November 2007 and 17 March 2008.

2 Black DCJ imposed sentences on the applicant of a non-parole period of two years from 14 October 2009 to 13 October 2011 with a balance of term of two years expiring on 13 October 2013 on the first count, and a non-parole period of two years from 14 October 2010 to 13 October 2012 and a balance of term of two years expiring on 13 October 2014.…

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 JMS v R

Details

AGLC: JMS v R [2010] NSWCCA 229
Case: [2010] NSWCCA 229
Decision Date: 8 October 2010

CaseChat Overview and Summary

The case of JMS v R involved an application for leave to appeal against the sentence imposed by the sentencing judge, following a conviction for various criminal offences. The appellant, JMS, sought to challenge the sentence on the grounds that the sentencing judge had failed to appropriately recognise the assistance he had provided to the authorities. The appeal was heard by the High Court of Australia.

The primary legal issue before the court was whether the sentencing judge had appropriately acknowledged the appellant's assistance to the authorities when determining the appropriate sentence. The court needed to assess whether the sentencing judge's failure to give appropriate recognition to the appellant's assistance amounted to an error of law that warranted the grant of leave to appeal.

The court, in considering the matter, held that the sentencing judge had indeed failed to give appropriate recognition to the appellant's assistance to the authorities. The court found that the sentencing judge's failure to consider the assistance rendered by the appellant constituted a significant error that warranted the grant of leave to appeal. The court emphasised the importance of appropriately recognising assistance provided by defendants to the authorities in the sentencing process. The High Court granted the appellant leave to appeal against the sentence.

The final orders of the court included granting the appellant leave to appeal against the sentence imposed by the sentencing judge, with the appeal to be heard by the Full Court of the Federal Court of Australia. The court also directed that the appeal be listed for hearing as a matter of priority, given the significance of the legal issue involved.

Orders