LB v R

Case [2013] NSWCCA 70 5 April 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LB v R [2013] NSWCCA 70
Hearing dates: 19 February 2013
Decision date: 05 April 2013
Before: Bathurst CJ at [1]
Hidden J at [2]
Button J at [3]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal against sentence allowed.
(3) Both sentences are quashed.
(4) With regard to count two of knowingly taking part in the manufacture of not less than a large commercial quantity of methylamphetamine, the Court imposes a non-parole period of imprisonment for 2 years 7 months to commence on 19 September 2010 and expire on 18 April 2013, with a parole period of 1 year 8 months to commence on 19 April 2013 and expire on 18 December 2014.
(5) With regard to count one of knowingly taking part in the manufacture of not less than a large commercial quantity of 3,4 methylenedioxymethylamphetamine and taking into account the matters on the Form 1, the Court imposes a non-parole period of imprisonment for 4 years 3 months to date from 19 April 2013 and expire on 18 July 2017, with a parole period of 3 years 4 months to date from 19 July 2017 and expire on 18 November 2020.
(6) The earliest date upon which the applicant will be eligible to be considered for release to parole is 18 July 2017.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - assistance given to authorities - discord between expressed discount and discount applied - no other error asserted - sentence did not comply with s 23 Crimes (Sentencing Procedure) Act 1999 - applicant re-sentenced
Legislation Cited: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Brown v R, R v Brown [2010] NSWCCA 73
R v Ehrlich [2012] NSWCCA 38
R v El Hani [2004] NSWCCA 162
R v Perez-Vargas (1986) 8 NSWLR 559
R v Sukkar [2006] NSWCCA 92
R v Waqa (No 2) [2005] NSWCCA 33; (2005) 156 A Crim R 454
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Category: Principal judgment
Parties: LB (applicant)
Regina (respondent)
Representation: Counsel:
T Game SC (applicant)
N Noman SC (respondent)
Solicitors:
Gregory J Goold (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2010/311841
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-08-26 00:00:00

Before:

Garling DCJ

File Number(s):

2011/311841

Judgment

BATHURST CJ: I agree with the orders proposed by Button J and with his Honour's reasons.

HIDDEN J: I agree with Button J.

BUTTON J: On 26 August 2011 in the District Court of New South Wales, his Honour Judge Garling sentenced the applicant (to whom I shall refer, for reasons that will become apparent below, as LB) for two serious drug offences. Each matter came before his Honour by way of a plea of guilty.

The first offence was, between 6 September 2007 and 30 October 2008 knowingly taking part in the manufacture of…

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 LB v R

Details

AGLC: LB v R [2013] NSWCCA 70
Case: [2013] NSWCCA 70
Decision Date: 05 April 2013

CaseChat Overview and Summary

LB was convicted of several criminal offences and sentenced to imprisonment. LB applied for leave to appeal against the sentence on the basis that the sentence did not adequately reflect the assistance provided to the authorities. The application was heard in the New South Wales Court of Criminal Appeal. The legal issues the court had to decide were whether the sentence was appropriate given the assistance provided, and whether the sentence complied with section 23 of the Crimes (Sentencing Procedure) Act 1999.

The court found that the sentence did not adequately reflect the assistance provided to the authorities. The court noted that the applicant had provided significant assistance to the authorities, but the discount applied to the sentence for this assistance did not match the discount that was expressed to be appropriate. The court also found that the sentence did not comply with section 23 of the Crimes (Sentencing Procedure) Act 1999, which requires that a sentence must not be excessive. The court held that the sentence was excessive given the assistance provided and the fact that the applicant had no prior criminal history. The court granted leave to appeal and re-sentenced the applicant to a lesser term of imprisonment.

The court's decision highlights the importance of properly considering and reflecting assistance provided to the authorities in sentencing. The court also emphasised the need for sentences to comply with statutory requirements, such as the requirement in section 23 of the Crimes (Sentencing Procedure) Act 1999 that a sentence must not be excessive. The court's decision serves as a reminder to sentencing courts to carefully consider all relevant factors, including assistance provided to the authorities, when imposing a sentence.

Orders