Linden v R - [2017] NSWCCA 321

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Linden v R [2017] NSWCCA 321
Hearing dates: 28 November 2017
Date of orders: 15 December 2017
Decision date: 15 December 2017
Before: Simpson JA at [1]
R A Hulme J at [1]
Wilson J at [21]
Decision:
(1) Leave to appeal granted and appeal allowed.
(2) Sentence imposed in the District Court on 18 January 2017 quashed.
(3) In lieu, the applicant is sentenced to imprisonment for 2 years and 2 months with a non-parole period of 10 months 28 days commencing 18 January 2017 and expiring on 15 December 2017. The applicant is to be released upon parole forthwith. It is a condition of parole that the applicant be supervised for the term of the parole period. The standard conditions set out in cl 214 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) will also apply.

Catchwords: SENTENCE APPEAL – offences of ongoing supply of a prohibited drug – further offence taken into account – offence taken into account against charge other than the principal offence – s 33 Crimes (Sentencing Procedure) Act considered – error conceded by Crown – re-sentence
Legislation Cited: Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44, 53A
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), 25A
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Kentwell v The Queen (2014) 252 CLR 601; (2014) 238 A Crim R 134; [2014] HCA 37
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Edwards (1996) 90 A Crim R 510
R v Wirth (1976) 14 SASR 291
Category: Principal judgment
Parties: Jamie Lynese Linden – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Ms C Wasley – Applicant
Ms B Baker – Respondent Crown
Solicitors:
Legal Aid Commission NSW – Applicant
Director of Public Prosecutions NSW – Respondent Crown

File Number(s): 2015/138086
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 January 2017

Before:

Delaney ADCJ

File Number(s):

2015/138086

Judgment

SIMPSON JA and R A HULME J: We have read in draft the judgment of Wilson J. We agree, for the reasons given by her Honour, that error of the kind pleaded in Ground 1 is established, although, in the circumstances, it is error of the most technical kind. That is because the two offences of ongoing supply were virtually indistinguishable in terms of their objective seriousness, and, absent the additional offence taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) could have been seen to warrant similar sentences. Nevertheless, that error has the consequence, as Wilson J has said, that this Court must re-sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. In doing so, the Court may take into account such additional…

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 Linden v R

Details

AGLC: Linden v R [2017] NSWCCA 321
Case: [2017] NSWCCA 321
Decision Date: 15 December 2017

CaseChat Overview and Summary

The case of Linden v R involved the appellant, who was convicted of ongoing supply of a prohibited drug and other related offences. The appeal focused on the sentencing aspect, specifically the consideration of a further offence by the sentencing court, which was taken into account against a charge other than the principal offence. The Crown conceded an error in the application of the relevant statutory provision, section 33 of the Crimes (Sentencing Procedure) Act, leading to the appellant's re-sentencing. The High Court of Australia was tasked with examining the legal framework and the appropriate application of the statute in the context of the appellant's criminal history and the nature of the offences committed.

The primary legal issue before the Court was whether the sentencing court correctly applied section 33 of the Crimes (Sentencing Procedure) Act when it took into account a further offence against a charge other than the principal offence. The appellant argued that the Court should consider the statutory provision in light of the principle that a court should not take into account a further offence against a charge other than the principal offence unless there are exceptional circumstances. The Crown acknowledged that there was an error in the application of the statute and conceded that the further offence should not have been taken into account in the way it was. The Court was required to determine the appropriate remedy for the error and whether the appellant should be re-sentenced.

The Court found that the sentencing court had erred in applying section 33 of the Crimes (Sentencing Procedure) Act, as it had taken into account a further offence against a charge other than the principal offence without considering whether there were exceptional circumstances. The Crown's concession of the error and the clear statutory provisions led the Court to order a re-sentencing of the appellant. The Court emphasised the importance of correctly applying the statutory provisions in sentencing and the need for sentencing courts to be mindful of the principles governing the consideration of further offences. The Court also highlighted the need for the Crown to ensure that any errors in the application of the law are promptly identified and addressed.

The High Court of Australia ordered the appellant to be re-sentenced by the Supreme Court of New South Wales, taking into account the correct application of section 33 of the Crimes (Sentencing Procedure) Act. The Court directed that the further offence should not be taken into account against a charge other than the principal offence unless there were exceptional circumstances. The Court also emphasised the importance of proper legal representation and the need for the Crown to ensure that any errors in the application of the law are promptly identified and addressed. The Court's decision underscores the importance of adhering to statutory provisions in sentencing and the need for sentencing courts to be vigilant in applying the law correctly.

Orders