Hoeben CJ at CL at [1] Brereton JA at [3] Fullerton J at [79]
Decision:
(1) Leave to appeal be granted. (2) Appeal dismissed. (3) Bail granted on 16 November 2018 on the release application is revoked. (4) The sentence of two years imprisonment with a non-parole period of one year imposed in the District Court on 6 November 2018 is confirmed. (5) Pursuant to s 18(2) of Criminal Appeal Act, the non‑parole period will expire on 5 October 2020 and the balance of term on 5 October 2021.
Catchwords:
CRIME – appeals – appeal against sentence– knowingly take part in supply of a prohibited drug – offence not carrying standard non-parole period – whether sentencing judge entitled to increase objective seriousness by matter inferred from agreed facts – whether judge erred in failing to take into account community safety and in particular whether ICO or fulltime custody more likely to address risk of reoffending – whether disparity established – whether sentence manifestly excessive
Counsel: G James QC (Applicant) K Jeffreys (Respondent)
Solicitors: One Group Legal (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2015/344002
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
6 November 2018
Before:
Robison DCJ
File Number(s):
2015/344002
Headnote
[This headnote is not to be read as part of the judgment]
The applicant pleaded guilty to an offence of knowingly take part in supply of a prohibited drug, namely…
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
AGLC
Karout v R [2019] NSWCCA 253
Case
[2019] NSWCCA 253
Decision Date
CaseChat Overview and Summary
In this matter, the appellant, Karout, was convicted of being knowingly involved in the supply of a prohibited drug, namely methylamphetamine. The appellant appealed against his sentence, which was imposed by the sentencing judge in the County Court of Victoria. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The primary legal issues before the court were whether the sentencing judge was entitled to increase the objective seriousness of the offence based on matters inferred from the agreed facts, and whether the judge erred in failing to adequately consider community safety and the relative merits of an intensive correction order (ICO) versus full-time custody in addressing the risk of reoffending.
The court examined the sentencing principles outlined in the Sentencing Act 1991 (Vic) and considered the objective seriousness of the offence, the culpability of the offender, and the need for community protection. The court found that the sentencing judge was entitled to infer additional facts from the agreed facts to determine the objective seriousness of the offence. The court also held that the sentencing judge did not err in failing to consider community safety or the relative merits of an ICO or full-time custody, as these matters were appropriately considered within the overall sentencing framework. The court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal.
The Court of Appeal upheld the sentence imposed by the sentencing judge, finding that it was not manifestly excessive and that the judge appropriately considered the relevant sentencing principles and factors in determining the appropriate penalty. The appeal was dismissed, and the original sentence stood.