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McBeth v R

McBeth v R

Case [2009] NSWCCA 235 16 September 2009

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New South Wales
Court of Criminal Appeal

CITATION: McBETH v R [2009] NSWCCA 235

HEARING DATE(S): 2 July 2009

JUDGMENT DATE:
16 September 2009

JUDGMENT OF: McClellan CJatCL at 1; Hidden J at 2; McCallum J at 3

DECISION: Leave to appeal against sentence granted, but appeal dismissed.

CATCHWORDS: CRIMINAL LAW – sentencing – leave to appeal against sentence – supplying prohibited drug – supplying commercial quantity of prohibited drug – finding of special circumstances – whether sentencing Judge erred in finding as to objective seriousness of offence - whether sentencing Judge adequately took into account subjective circumstances of offender – whether sentence manifestly excessive - partial accumulation – sentence imposed severe having regard to statistics – limits to the use of statistics – no error by sentencing Judge

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Listening Devices Act 1984

CATEGORY: Principal judgment

CASES CITED: House v The King [1936] HCA 40; 55 CLR 499
Mulato [2006] NSWCCA 282
R v Bloomfield (1998) 44 NSWLR 734
R v O’Donoghue (1988) 34 A Crim R 397
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Taouk (1992) 65 A Crim R 387
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Van Cuong Nguyen v R [2008] NSWCCA 322
Weininger v R [2003] HCA 14; (2003) 196 ALR 451

PARTIES: John McBETH (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2008/4043

COUNSEL: Mr R Bonnici (Applicant)
Ms V Lydiard (Respondent)

SOLICITORS: Colleen Donnelly (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 792/08

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 14 August 2008

- 17 -

2008/4043

McCLELLAN CJ at CL
HIDDEN J
McCALLUM J

16 SEPTEMBER 2009

John McBETH v R

Judgment

1 McCLELLAN CJ at CL: I agree with McCallum J.

2 HIDDEN J: I agree with McCallum J.

3 McCALLUM J: This is an application for leave to appeal against the sentences imposed on John McBeth after he pleaded guilty in the District Court to two offences of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and one offence of supplying a commercial quantity of a prohibited drug contrary to s 25(2) of the Act. The charges arose out of transactions negotiated between the applicant and an undercover police officer. Throughout the operation, the undercover officer identified himself as Scott, which was an assumed name. He is referred to by that name in this judgment.

4 The first charge related to the supply of 99 ecstasy tablets on 9 July 2007. The weight of the tablets was 23.7g. The maximum term of imprisonment in respect of that offence is 15 years. The sentencing Judge imposed a fixed term of 18 months, to commence on 23 August 2007 (the date on which the applicant was arrested).

5 The second charge…

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 McBeth v R

Details

AGLC: McBeth v R [2009] NSWCCA 235
Case: [2009] NSWCCA 235
Decision Date: 16 September 2009

CaseChat Overview and Summary

In the case of McBeth v R, the appellant was convicted of supplying a commercial quantity of a prohibited drug and sought leave to appeal against the sentence imposed by the sentencing judge. The central issue in this appeal was whether the sentencing judge erred in determining the objective seriousness of the offence and whether the judge adequately considered the subjective circumstances of the offender. Additionally, the court examined whether the sentence was manifestly excessive, considering the principle of partial accumulation.

The court examined the sentencing judge's findings in light of the principles established in previous cases. It found that the sentencing judge correctly assessed the objective seriousness of the offence by considering the quantity of the drug supplied and its potential impact on the community. The court further determined that the sentencing judge adequately took into account the subjective circumstances of the offender, including personal background and remorse, in arriving at the sentence. The court emphasised that while statistics may provide a useful reference, they cannot be the sole determinant in assessing the severity of a sentence. The court concluded that the sentence imposed was not manifestly excessive when viewed in the context of the offender's background and the nature of the offence.

The court dismissed the appeal, finding no error in the sentencing judge's assessment of the objective seriousness of the offence or in the consideration of the offender's subjective circumstances. The court confirmed that the sentence was appropriate and did not exceed the limits of judicial discretion. Consequently, the appeal was unsuccessful, and the original sentence was upheld.

Orders