La v R

Case [2021] NSWCCA 136 2 July 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: La v R [2021] NSWCCA 136
Hearing dates: 21 June 2021
Date of orders: 21 June 2021
Decision date: 02 July 2021
Before: Basten JA at [1]
Price J at [2]
Garling J at [3]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – supply of prohibited drugs – sentencing – relevant factors on sentence – whether offender spent time in quasi-custody – whether quasi-custody was taken into account by the sentencing judge – no quasi-custody – no error of law established – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 93T
Bail Act 2013 (NSW), ss 20, 20A
Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25, 25A

Cases Cited:
Bonett v R [2013] NSWCCA 234
Kelly v R [2018] NSWCCA 44
Small v R [2018] NSWCCA 290

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Joshua La (Applicant)
Regina
Representation:
Counsel:
T O’Rourke (Applicant)
K Jeffreys (Crown)
Solicitors:
E Havas (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2018/186474
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02 October 2020

Before:

Bourke SC DCJ

File Number(s):

2018/186474

Judgment

BASTEN JA: I agree with Garling J. As he explains, the term “quasi-custody”, as applied to a condition of pre-sentence bail, must be used with an appreciation that it is formulaic and no more than a label for a range of factual considerations. It has no legal content or consequence, although the constituent proven facts may have.
PRICE J: For the reasons enunciated by Garling J, I joined in the orders made by the Court on 21 June 2021.
GARLING J: Having pleaded guilty to three offences relating to the supply of prohibited drugs, the applicant, by way of an aggregate sentence, was sentenced to a term of imprisonment for 3 years and 3 months by Bourke SC DCJ (“the Judge”) with a non-parole period of 1 year and 10 months.
The sentence was ordered to commence from 10 January 2020. The non‑parole period expires on 9 November 2021, and the sentence expires on 9 April 2023.
The applicant seeks leave to appeal against that sentence, but only with respect to one aspect of it. He asserts that there was an error of law made by the Judge in failing to take account, when imposing sentence, of the fact that for a significant period of time whilst he (the applicant) was on bail awaiting sentence, he undertook a residential rehabilitation program which, he contends, amounted to quasi-custody and should have been allowed for specifically by the Judge.
At the conclusion of the hearing of the appeal, the Court made orders granting leave to appeal, and dismissing the appeal. These are my reasons for joining in with those orders being made.

Offences

The first offence with which the applicant was charged, was…

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 La v R

Details

AGLC: La v R [2021] NSWCCA 136
Case: [2021] NSWCCA 136
Decision Date: 02 July 2021

CaseChat Overview and Summary

The case involved an appeal by the offender, La, against the sentence imposed by the sentencing judge. La had been convicted of supplying prohibited drugs. The appeal centred on whether the sentencing judge appropriately considered the time La had spent in quasi-custody when determining the sentence. La argued that the quasi-custody period should have been taken into account, but the Crown contended that the sentencing judge had correctly assessed all relevant factors without error. The appeal was heard by the higher court which had to determine whether the sentencing judge had made an error in failing to consider the quasi-custody time.

The court examined whether the sentencing judge had erred by not taking into account the quasi-custody period in sentencing. It considered the legal principles and precedents regarding the relevance of quasi-custody in sentencing. The court concluded that the sentencing judge had not made any error of law by not considering the quasi-custody time as a mitigating factor, as it was not a legally mandated consideration in this case. The court emphasised that the sentencing judge had assessed all relevant factors in accordance with the law, and no legal error was established.

Based on the court's reasoning, the appeal was dismissed. The higher court held that the sentencing judge had correctly applied the law and considered all relevant factors in determining the sentence. The court found that no legal error had been made, and therefore the sentence imposed by the sentencing judge would stand. The appeal was unsuccessful, and the original sentence remained in place.

Orders