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Labban v The The King

Labban v The The King

Case [2022] NSWCCA 275 15 December 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Labban v R [2022] NSWCCA 275
Hearing dates: 5 August 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Before: Bell CJ at [1];
Mitchelmore JA at [2];
Hamill J at [40].
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – parity – two offences of supply commercial quantity of prohibited drug, cocaine and methylamphetamine, contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – three offences on Form 1 – where sentencing judge did not refer to principles of parity in remarks on sentence – whether applicant’s case differentiated from co-offenders – whether applicant able to understand how case was differentiated
CRIME – appeals – appeal against sentence – totality – two offences of supply commercial quantity of prohibited drug, cocaine and methylamphetamine, contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – three offences on Form 1 – where sentencing judge did not refer to submissions on accumulation and concurrency, nor totality – whether degree of accumulation settled upon open in the exercise of sentencing discretion

Legislation Cited:
Crimes Act 1900 (NSW), s 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and (2), s 25A(1), 29
Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases Cited:
Cahyadi v R (2007) 168 A Crim R 41
Chamon v R [2020] NSWCCA 112
Franklin v R [2013] NSWCCA 122
Hall v R [2021] NSWCCA 220
Huckstadt v R [2016] NSWCCA 22
Jackson v R [2022] NSWCCA 148
JT v R [2012] NSWCCA 133
Miles v R [2017] NSWCCA 266

Category: Principal judgment
Parties: Paul Labban (Applicant)
Crown (Respondent)
Representation:
Counsel:
R Rodger and C Brain (Applicant)
S Traynor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/389775
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

19 February 2021

Before:

Colefax SC DCJ

File Number(s):

2018/389775

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Paul Labban, sought leave to appeal against the sentence of imprisonment imposed by Colefax SC DCJ sitting in the District Court at Campbelltown on 19 February 2021, following his pleas of guilty to two offences of supply commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”), namely, 366.14 grams of cocaine (Count 1) and 284.89 grams of methylamphetamine (Count 2). The sentencing judge took three further offences into account on a Form 1 attaching to Count 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely: resist officer in the execution of duty, possess prohibited drug, and supply prohibited drug (deemed).

The offending conduct involved the applicant supplying the drugs…

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 Labban v The The King

Details

AGLC: Labban v The The King [2022] NSWCCA 275
Case: [2022] NSWCCA 275
Decision Date: 15 December 2022

CaseChat Overview and Summary

Labban v The King involved the appellant, Labban, appealing against his sentence for two offences of supplying commercial quantities of cocaine and methylamphetamine. Labban was charged under section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The sentencing judge did not consider the principles of parity or totality in delivering the sentence. Labban argued that his case was not differentiated from his co-offenders, nor could he understand how it was differentiated. Additionally, he claimed that the judge did not consider the submissions on accumulation and concurrency or the principle of totality in sentencing.

The primary legal issues the court needed to address were whether Labban's case was differentiated from his co-offenders and whether the sentencing judge's failure to refer to the principles of parity and totality was an error warranting an appeal. The court considered whether these omissions by the sentencing judge were significant enough to undermine the fairness and appropriateness of the sentence imposed. The appeal hinged on the proper application of sentencing principles, particularly in relation to parity and totality.

In reaching its decision, the court examined the sentencing remarks and the submissions made during sentencing. It held that the sentencing judge did not err by not referring to the principles of parity and totality. The court found that Labban's case was indeed differentiated from his co-offenders, justifying a different sentence. Furthermore, the court held that the absence of explicit reference to parity and totality did not render the sentence unjust or inappropriate. The court concluded that the sentencing judge exercised their discretion appropriately, taking into account all relevant factors.

The appeal was dismissed. The court affirmed the sentence imposed by the original sentencing judge, finding no basis to alter it based on the grounds raised in the appeal.

Orders