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Lachlan Wilson v R

Lachlan Wilson v R

Case [2014] NSWCCA 266 28 November 2014

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Court of Criminal Appeal

New South Wales

Case Title: Lachlan Wilson v R

Medium Neutral Citation: [2014] NSWCCA 266

Hearing Date(s): 10 and 11 April 2014

Decision Date: 28 November 2014

Before: Bathurst CJ; Fullerton J; Davies J

Decision:
1.Appeal against conviction dismissed.
2.Grant leave to appeal against sentence.
3.Appeal against sentence dismissed.

Catchwords: CRIMINAL - appeal - conviction - whether verdict unreasonable - appellant acquitted of importation of border controlled precursor - appellant convicted of supply of prohibited drug - drug in both offences the same - mental element of both offences formed in same period - acquittal of importation offence on reasonable doubt as to mental element - whether failure to convict on importation offence rendered conviction on supply offence unreasonable - consideration of jury questions

CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of importing border controlled precursor where precursor and prohibited drug the same

CRIMINAL - appeal - sentence - De Simoni principle - whether judge impermissibly considered conduct relating to drug importation offence when sentencing for supply offence - practical necessity requires references to context in which offending occurred and surrounding circumstances

CRIMINAL - appeal - sentence - whether manifestly excessive - whether any error in assessment of criminal culpability and appointment of appellant's role in drug syndicate

CRIMINAL - appeal - sentence - parity - whether discrepancy between sentences of co-offenders is disproportionate to relevant distinctions in roles played and subjective circumstances of co-offenders - whether disparity is gross, marked or glaring - position of trial judge

Legislation Cited: Criminal Code Act 1995 (Cth), ss 3.1, 3.2, 307.11 and 307.14
Drug Misuse and Trafficking Act 1985 (NSW), s 3, 24A, 25, 33 and Sch 1
Criminal Appeal Act 1912 (NSW), s 6

Cases Cited: BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Crystal Lee England v R [2009] NSWCCA 274
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dungay v R; R v Dungay [2010] NSWCCA 82
ES v R [2014] NSWCCA 268
Gill v R [2010] NSWCCA 236
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Ibrahim Jidah v R [2014] NSWCCA 269
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272

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 Lachlan Wilson v R

Details

AGLC: Lachlan Wilson v R [2014] NSWCCA 266
Case: [2014] NSWCCA 266
Decision Date: 28 November 2014

CaseChat Overview and Summary

In the matter of Lachlan Wilson v R, the appellant, Lachlan Wilson, appealed against his conviction and sentence for drug-related offences. Wilson was acquitted of the importation of a border-controlled precursor but was convicted of the supply of a prohibited drug. Both offences involved the same drug, and the mental element for both offences formed during the same period. The court was tasked with determining whether the acquittal on the importation offence, due to a reasonable doubt regarding the mental element, rendered the conviction on the supply offence unreasonable. The court also had to consider whether the judge had improperly considered the conduct related to the drug importation offence when sentencing for the supply offence and whether the sentence was manifestly excessive or if there was an error in assessing Wilson's criminal culpability.

The central legal issues in the appeal were whether the elements of the offence of supplying a prohibited drug were contained within the offence of importing a border-controlled precursor when both offences involved the same drug. The court had to consider whether the jury's acquittal on the importation offence, due to reasonable doubt regarding the mental element, rendered the conviction on the supply offence unreasonable. Additionally, the court needed to determine whether the judge improperly considered the conduct related to the drug importation offence when sentencing for the supply offence and whether the sentence imposed was manifestly excessive or if there was an error in assessing Wilson's criminal culpability and role in the drug syndicate.

The court found that the jury's acquittal on the importation offence did not necessarily render the conviction on the supply offence unreasonable. The court held that the elements of the two offences were distinct, and the acquittal on the importation offence did not automatically invalidate the conviction on the supply offence. Regarding the sentencing, the court held that the judge was entitled to consider the context in which the offending occurred and the surrounding circumstances when imposing the sentence. The court found no error in the assessment of Wilson's criminal culpability and role in the drug syndicate. The court also found that the sentence was not manifestly excessive and that the discrepancy between the sentences of co-offenders was not disproportionate to the relevant distinctions in their roles and subjective circumstances.

The appeal was dismissed, and the conviction and sentence were upheld. The court confirmed that the jury's acquittal on the importation offence did not render the conviction on the supply offence unreasonable and that the judge was entitled to consider the context and surrounding circumstances when sentencing. The court also found that the sentence imposed was not manifestly excessive and that the discrepancy between the sentences of co-offenders was not disproportionate.

Orders