McAndrew v The Queen - [2006] NSWCCA 12

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: McAndrew v Regina [2006] NSWCCA 12

FILE NUMBER(S):
2005/2022

HEARING DATE(S): 2 February 2006

DECISION DATE: 02/02/2006
EX TEMPORE DATE: 02/02/2006

PARTIES:
Jamie Charles McAndrew v Regina

JUDGMENT OF: Grove J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1273

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL:
C. Smith (Applicant)
J. Girdham (Respondent/Crown)

SOLICITORS:
S. O'Connor (Legal Aid)
S. Kavanagh (DPP)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
SUPPLY (DEEMED) COMMERCIAL QUANTITY OF PROHIBITED DRUG (KETAMINE)
PRIOR RECORD NOT A MATTER OF AGGRAVATION
OBJECTIVE OFFENCE SERIOUS
NO LESSER SENTENCE WARRANTED
CRIMINAL APPEAL ACT s 6(3) APPLIED

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

DECISION:
APPEAL DISMISSED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2022
GROVE J
ROTHMAN J
2 February 2006

JAMIE CHARLES McANDREW v REGINA

Judgment

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hosking DCJ at Sydney District Court.
On 4 March 2005 the applicant was sentenced on a charge of supplying not less than the commercial quantity of a prohibited drug (ketamine) to imprisonment consisting of a non-parole of four and a half years commencing on 21 July 2004 and expiring on 20 January 2009 and a total term of seven and a half years commencing on the first mentioned date.
Taken into account pursuant to the Form 1 procedure was an offence of possessing another prohibited drug, methylamphetamine.
On 21 July 2004 police obtained a search warrant for residential premises occupied by the applicant. Upon arrival the applicant declined to open the door and it was forced by use of a sledgehammer. Thereafter police commenced their search and the applicant indicated that he would point out to police where the material, which he apprehended they were searching for, was located. Accordingly, the drugs were seized and the applicant arrested and taken to the police station where he declined to be electronically interviewed. He indicated his plea of guilty at the Local Court.
The applicant had a prior record, significant items being convictions in relation to cultivating cannabis in 1992, 1993 and 1999 and also for supplying cannabis in 1999 in respect of which offence he was sentenced to imprisonment for a minimum term of nine months with an additional term of six months.
The applicant is a disabled pensioner aged thirty-seven years. His disability relates to renal failure and there was evidence before his Honour that whilst in custody prior to sentence the applicant had been taken three times a week for dialysis. It is clear that his custody will be rendered more than usually onerous by the requirements of treatment for this condition. His Honour was aware of these circumstances and expressly took them into account.
It is to be noted that for the offence there is a prescribed standard non-parole period of ten years directly applicable where there is conviction after trial. Nevertheless the parliamentary prescription offers some relevant guidance and as I have…

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 McAndrew v The Queen

Details

AGLC: McAndrew v The Queen [2006] NSWCCA 12
Case: [2006] NSWCCA 12
Decision Date: 2 February 2006

CaseChat Overview and Summary

The case of McAndrew v The Queen involved the appellant, McAndrew, who was convicted for supplying a commercial quantity of the prohibited drug, ketamine. The appeal was against his sentence, arguing it was excessive given his prior criminal record. The High Court of Australia was the appellate court in this matter, tasked with reviewing the sentence imposed by the lower court. The primary legal issues centred around the principles of sentencing for drug supply offences and whether the lower court had appropriately considered the appellant's prior record and the objective seriousness of the offence. The Court had to determine if the sentence was proportionate and whether any lesser sentence would be warranted.

The Court considered that while the supply of a commercial quantity of a prohibited drug such as ketamine is a serious matter, the appellant's prior criminal record should not be considered as an aggravating factor. The Court emphasised the objective seriousness of the offence, taking into account the nature of the drug and the quantity supplied. The Court held that the sentence imposed was not excessive and that no lesser sentence was warranted. The Court applied the relevant provisions of the Criminal Appeal Act, particularly section 6(3), which allows the Court to consider the totality of the circumstances in sentencing matters. The Court concluded that the sentence reflected the gravity of the offence and was proportionate to the circumstances.

In conclusion, the High Court upheld the sentence imposed by the lower court. The Court found that the sentence was appropriate given the objective seriousness of the offence and that the appellant's prior criminal record did not warrant an increase in the sentence. The Court's decision underscored the importance of considering the nature of the drug and the quantity involved in drug supply offences, while also highlighting that prior criminal history should not automatically be treated as an aggravating factor. The final orders of the Court were to dismiss the appeal and uphold the sentence imposed by the lower court.

Orders