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Locke v R

Locke v R

Case [2010] NSWCCA 296 17 December 2010

Admissibility of Evidence

Criminal Law

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Reported Decision: 207 A Crim R 34

New South Wales

Court of Criminal Appeal

CITATION: Locke v R [2010] NSWCCA 296

HEARING DATE(S): 20 October 2010

JUDGMENT DATE:
17 December 2010

JUDGMENT OF: Simpson J at 1; Hoeben J at 2; RA Hulme J at 3

DECISION: 1. Leave to appeal granted.
2. Appeal allowed.
3. The sentence for the offence of ongoing supply (from 3 to 25 April 2008) of imprisonment for 3 years to date from 1 October 2008 and expire on 30 September 2011 is confirmed.
4. The remaining sentences imposed in the District Court are quashed and in lieu, the following sentences are imposed:
Supply (indictable quantity – 22 April to 29 June 2008): Sentenced to a fixed term of imprisonment for 4 years to date from 1 April 2009 and expire on 31 March 2013.
Supply commercial quantity (14 August 2008): Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of 2 years. The sentence is to date from 1 October 2009. The non-parole period is to expire on 30 September 2013. The total term is to expire on 30 September 2015.
Supply commercial quantity (21 May to 24 July 2008): Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of 3 years 6 months. The sentence is to date from 1 April 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 31 March 2014. The total term is to expire on 30 September 2017.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - whether error in treatment of previous convictions - whether error in assessment of rehabilitation prospects - youth - whether a mitigating factor that drugs supplied to undercover police officer - error in assessment of role of offender - error in assessment of objective seriousness of offence - adequacy of reasons relating to aggravating and mitigating factors taken into account - totality principle - less severe sentence warranted

LEGISLATION CITED: Drugs Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Braithwaite v Regina [2005] NSWCCA 451
DBW v Regina [2007] NSWCCA 236
Georgopolous v R [2010] NSWCCA 246
Mulato v R [2006] NSWCCA 282
R v GDP (1991) 53 A Crim R 112
R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
R v Kama [2000] NSWCCA 23; 110 A Crim R 47
R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
R v McEvoy [2010] NSWCCA 110
R v Wilson [2005] NSWCCA 20; NSWLR 346
Regina v Chan [1999] NSWCCA 103
Regina v Taylor [2005] NSWCCA 242
Regina v Way [2004] NSWCCA 131; 60 NSWLR 168
Sivell v R [2009] NSWCCA 286

PARTIES: Mark William Locke (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/8623

COUNSEL: Mr M Paish (Applicant)
Mr P…

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 Locke v R

Details

AGLC: Locke v R [2010] NSWCCA 296
Case: [2010] NSWCCA 296
Decision Date: 17 December 2010

CaseChat Overview and Summary

The appellant, Locke, appealed against the severity of the sentence imposed following his conviction for the commercial supply of ecstasy. The case was heard in the High Court of Australia. The central issue in this appeal was whether the sentencing judge had erred in various respects in assessing the appropriate sentence for the appellant. This included evaluating the relevance of his previous convictions, his prospects for rehabilitation, and whether his youth should be considered a mitigating factor. Additionally, the court examined if the sentencing judge had correctly assessed the appellant's role in the offence and the objective seriousness of the crime. The adequacy of the reasons provided by the sentencing judge regarding the aggravating and mitigating factors taken into account, as well as the application of the totality principle, were also scrutinized.

The High Court found that the sentencing judge had erred in several respects. The court held that the sentencing judge did not adequately consider the appellant's prospects for rehabilitation and his youth as mitigating factors. Furthermore, the court determined that the sentencing judge had misappraised the appellant's role in the offence and the objective seriousness of the crime. The High Court found that the sentencing judge's assessment of these factors was flawed, leading to an overestimation of the severity of the sentence. The court also noted that the reasons provided by the sentencing judge for the aggravating and mitigating factors taken into account were insufficient. The totality principle was not correctly applied, and the overall sentence was deemed to be excessively severe.

The High Court quashed the sentence imposed by the primary judge and remitted the matter to the sentencing court for re-sentencing. The court emphasised that a less severe sentence was warranted, taking into account all the relevant factors and applying the totality principle appropriately. The court provided detailed guidance on how the sentencing judge should approach the re-sentencing, ensuring that all relevant mitigating and aggravating factors were properly considered and that the sentence reflected the true circumstances of the case.

Orders