LMN v R - [2012] NSWCCA 52

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LMN v Regina [2012] NSWCCA 52
Hearing dates: 28 March 2012
Decision date: 30 March 2012
Before: Beazley JA
Harrison J
McCallum J
Decision:
Appeal dismissed.

Catchwords: CRIME - sentencing - assistance to authorities - whether sentencing judge erred in refusing to reduce sentence
Legislation Cited: Crimes (Sentencing and Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Hristovksi v R [2010] NSWCCA 129
House v the King (1936) 55 CLR 499
R v Cartwright (1989) 17 NSWLR 243
R v Stanbouli [2003] NSWCCA 355
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Category: Principal judgment
Parties: Applicant's name anonymised
Regina (Respondent)
Representation: K Dailly (Applicant)
S Dowling (Crown)
S Kavanagh,
Solicitor for Public Prosecutions

File Number(s): 2009/218329
Publication restriction: None
Decision under appeal

Date of Decision:

2011-02-25 00:00:00

Before:

English DCJ

File Number(s):

2009/218329

Judgment

BEAZLEY JA: I agree with McCallum J.

HARRISON J: I agree with McCallum J.

McCALLUM J: The name of the applicant has been anonymised in this judgment with the consent of the Crown.

The applicant seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to two counts of supplying not less than a commercial quantity of the drug known as ecstasy (3,4 methylenedioxymethylamphetamine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 20 years. The offence carries a standard non-parole period of ten years under division 1A of part 4 of the Crimes (Sentencing and Procedure) Act 1999.

The applicant was sentenced in the District Court as follows:

On the first count, to a fixed term of imprisonment for three years.

On the second count, to a term of imprisonment with a non-parole period of four years commencing six months after the commencement of the sentence on the first count and a balance of term of four years.

The aggregate sentence was accordingly a non-parole period of four years and six months and a total term of eight years and six months.

As the offence was one for which a standard non-parole period is prescribed, the fixed term sentence for count one should not have been imposed. The power in s 45(1) of the Crimes (Sentencing Procedure) Act to decline to set a non-parole period does not apply to such offences. The Court was required to set a non-parole period and, accordingly, a fixed term was not available as a sentence: see s 44(1) of the Act; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [47]. However, that error does not affect the validity of the sentence passed and, there being no ground of appeal that raises the issue, does not of itself warrant the intervention of this Court: cf Hristovksi v R [2010] NSWCCA 129 at [64]-[65] per Johnson J; McClellan CJ at CL and Grove J agreeing at [1] and [2]…

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 LMN v R

Details

AGLC: LMN v R [2012] NSWCCA 52
Case: [2012] NSWCCA 52
Decision Date: 30 March 2012

CaseChat Overview and Summary

LMN was convicted of a serious crime and sentenced by the court. LMN appealed the sentence on the basis that the sentencing judge did not adequately take into account the assistance LMN provided to the authorities in the investigation of the crime. The appeal was heard in the High Court of Australia.

The legal issue before the court was whether the sentencing judge erred in not reducing the sentence to reflect the assistance provided by LMN. The court considered whether the sentencing judge had failed to take into account a relevant mitigating factor, and whether this constituted a significant error in the sentencing process.

The High Court held that the sentencing judge did not err in refusing to reduce the sentence to reflect the assistance provided by LMN. The court found that while the assistance provided was a relevant mitigating factor, it was not of such significance as to warrant a reduction in the sentence. The court held that the sentencing judge had appropriately considered the assistance in the overall context of the case, and that the sentence imposed was not manifestly excessive.

No further orders were made by the court.

Orders