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Loader v R; Dunn v R

Loader v R; Dunn v R

Case [2013] NSWCCA 215 19 September 2013

Sentencing

Misstatement of Law

Judicial Review of Sentences

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Loader v R; Dunn v R [2013] NSWCCA 215
Hearing dates: 29 August 2013
Decision date: 19 September 2013
Before: Latham J at [1]
Rothman at [2]
Davies J at [3]
Decision:
Application for leave to appeal by Mr Loader
(1) Extend time for filing of Notice of Application for leave to appeal to 11 July 2012.
(2) Grant leave to appeal.
(3) Dismiss the appeal.
Application for leave to appeal by Mr Dunn
(4) Grant leave to appeal.
(5) Dismiss the appeal.

Catchwords: CRIMINAL LAW - sentence - drug supply - co-offenders - parity - all offenders sentenced by same judge - judge refers to earlier remarks when sentencing later offenders - sentencing judge misstates maximum penalty for some offences - whether sentencing infected by error - whether some other sentence warranted
Legislation Cited: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Butler v R [2012] NSWCCA 23
Dusan Pavicevic v R [2010] ACTCA 25
Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274
EJDG v R [2012] NSWCCA 251
England v R; Phanith v R [2009] NSWCCA 274
Gill v R [2010] NSWCCA 236
Muldrock v The Queen [2011] HCA 39; (2012) 244 CLR 120
R v Spizzerri [2001] VSCA 49
R v Swan [2006] NSWCCA 47
Shortland v R [2013] NSWCCA 4
Trevor Essex v R [2013] NSWCCA 11
Category: Principal judgment
Parties: Scott Loader (Applicant)
Peter Leslie Dunn (Applicant)
Crown
Representation: Counsel:
P Bodisco (for the Applicant Scott Loader)
S Kluss (for the Applicant Peter Leslie Dunn)
S Herbert (Crown)
Solicitors:
Mark A Riviere Solicitors (for the Applicant Scott Loader)
Elamrousy Solicitors (for the Applicant Peter Leslie Dunn)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/245105 & 2009/245005
Decision under appeal

Before:

Ellis DCJ

File Number(s):

2009/245105 & 2009/245005

Judgment

LATHAM J: I agree with Davies J.

ROTHMAN J: I agree with Davies J.

DAVIES J: On 15 September 2010 Scott Patrick Loader pleaded guilty in Wyong Local Court to the following offences:

Count 1: Ongoing supply of Benzylpiperazines and Methylamphetamine between 7 September and 29 September 2009. The maximum penalty was imprisonment for 20 years and/or 3500 penalty units.

Count 2: Supply 282 tablets of MDMA being not less than the commercial quantity between 17 September and 7 November 2009. The maximum penalty was imprisonment for 15 years and/or 2000 penalty units.

Count 3: Supply of 863.15g of methylamphetamine being not less than the commercial quantity between 15 September and 11 October 2009. The maximum penalty was imprisonment for 20 years and/or 3500 penalty units. There is a standard non-parole period of ten years.

Count 4: Supply 348g of methylamphetamine being not less than the commercial quantity on 6 November 2009. The maximum penalty was imprisonment for 20 years and/or 3500 penalty units. There is a standard non-parole period of ten years.

Count 5: Supply 70 tablets of MDMA being an…

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 Loader v R; Dunn v R

Details

AGLC: Loader v R; Dunn v R [2013] NSWCCA 215
Case: [2013] NSWCCA 215
Decision Date: 19 September 2013

CaseChat Overview and Summary

The applicants, Loader and Dunn, appealed against their respective sentences in the High Court of Australia. Both applicants were convicted of drug supply offences and sentenced by the same judge. The High Court was required to determine whether the applicants' sentences were infected by error, given the sentencing judge had made some misstatements regarding the maximum penalties for certain offences and had referred to earlier remarks when sentencing the later offenders. The central issue was whether the sentencing process was flawed due to the errors and, if so, what the appropriate remedy might be.

The High Court examined whether the sentencing judge's misstatements regarding the maximum penalties constituted a jurisdictional error. The Court found that the misstatements did not affect the overall sentence as the judge had correctly identified the statutory maximum penalties. However, the Court held that the misstatements constituted a legal error. The Court further held that the sentencing judge's reference to earlier remarks when sentencing the later offenders did not constitute a legal error, as it did not impact the sentence imposed. The High Court concluded that the sentences were not infected by error and did not warrant any further remedy.

The High Court dismissed the appeals and upheld the applicants' sentences. The Court determined that the sentencing judge's errors did not impact the overall sentence imposed and that no further remedy was warranted. The High Court held that the sentences were appropriate and did not require any further action. The Court's decision reinforces the importance of accurate sentencing remarks but also recognises that minor errors do not necessarily invalidate a sentence if the overall sentence is appropriate.

Orders