Lander v The Queen - [2014] NSWCCA 198

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lander v R [2014] NSWCCA 198
Hearing dates: 28.07.2014
Decision date: 01 October 2014
Before: Hoeben CJ at CL at [1]
Beech-Jones J at [60]
Hamill J at [61]
Decision:
(1) Grant leave to appeal.
(2) The appeal is dismissed.
(3) The grant of bail is hereby revoked and the applicant is to be returned to custody forthwith to complete the sentence imposed by Freeman ADCJ. The applicant is to be released to parole on 31 December 2014 and as a condition of his parole, he is to be subject to supervision by the Probation and Parole Service.

Catchwords: CRIMINAL LAW - sentence appeal - three counts of supply MDMA and two counts of supply cannabis - effective sentence of imprisonment with a non-parole period of 9 months and a balance of term of 18 months - plea of guilty at early point in time - failure by a sentencing judge to mention discount for early plea - whether applicant received discount for early plea - whether finding beyond reasonable doubt that the applicant was a "conduit" was open on the evidence - whether sentences manifestly excessive - appeal dismissed.
Legislation Cited: Criminal Procedure Act 1986 - s166(1)(b)
Drug Misuse and Trafficking Act 1985 - s25(1)
Cases Cited: Abdul v R [2013] NSWCCA 247
Markarian v R [2005] HCA 25; 228 CLR 357
Peiris v R [2014] NSWCCA 58
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Thomson; R v Houlton [2000] NSWCCA 309 49 NSWLR 383
Regina v Lawrence [2005] NSWCCA 91
Regina v Schumacher [2005] NSWCCA 355
Category: Principal judgment
Parties: Rory Douglas Lander - Applicant
Regina - Respondent Crown
Representation: Counsel:
Ms H Cox - Applicant
Mr L Babb SC - Respondent Crown
Solicitors:
SE O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2013/141075
Decision under appeal

Date of Decision:

2013-11-15 00:00:00

Before:

Freeman ADCJ

File Number(s):

2013/141075

Judgment

HOEBEN CJ at CL:

Offence and sentence

On 15 November 2013 the applicant was sentenced by Freeman ADCJ on three counts of supply 3, 4 - methylenedioxymethylamphetamine (MDMA); two counts of supply cannabis and one count of possess cannabis.

On the first count of supply MDMA (an amount of 100 tablets with a weight of 25 grams) his Honour imposed a sentence of imprisonment with a non-parole period of 9 months and a balance of term of 18 months. The sentence was to commence on 15 November 2013 with the non-parole period expiring on 14 August 2014 and the balance of term expiring on 14 February 2016.

On the second count of supply MDMA (10 tablets with a weight of 2.5 grams) his Honour sentenced the applicant to imprisonment with a non-parole period of 6 months and a balance of term of 12 months which was wholly concurrent with the sentence in respect of count 1.

On the third charge of supplying…

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 Lander v The Queen

Details

AGLC: Lander v The Queen [2014] NSWCCA 198
Case: [2014] NSWCCA 198
Decision Date: 01 October 2014

CaseChat Overview and Summary

The case of Lander v The Queen involved the appellant, Lander, who had pleaded guilty to three counts of supplying MDMA and two counts of supplying cannabis. Lander appealed his sentence, which comprised imprisonment with a non-parole period of nine months and a balance of term of 18 months. The appeal raised several legal issues, including whether the sentencing judge had failed to mention a discount for Lander's early plea, whether Lander had indeed received such a discount, whether it was open on the evidence to find beyond reasonable doubt that Lander was a "conduit" for the drugs, and whether the sentences were manifestly excessive.

The court examined the sentencing judge's failure to mention the discount for Lander's early plea, but concluded that the sentence imposed was reflective of the discount. It was found that Lander did receive a discount for his early plea, despite the lack of explicit mention by the judge. Regarding the characterisation of Lander as a "conduit," the court found that the evidence was sufficient to support this conclusion. Finally, the court assessed the sentences and determined that they were not manifestly excessive, taking into account the nature and circumstances of the offences and Lander's role in them.

Ultimately, the appeal was dismissed. The court upheld the sentence imposed by the primary judge, finding no grounds for altering it. The reasoning and evidence presented at the trial and during the appeal did not warrant a different outcome, and the sentences imposed remained appropriate.

Orders