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McKellar v R

McKellar v R

Case [2010] NSWCCA 295 17 December 2010

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New South Wales
Court of Criminal Appeal

CITATION: McKellar v R [2010] NSWCCA 295

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. Application for leave to appeal granted.
2. Appeal allowed.
3. The sentence for the offence of supply prohibited drug (on 26 September 2008) of imprisonment for a fixed term of 18 months, dating from 26 February 2010 and expiring on 25 August 2011, is confirmed.
4. The sentence for the offence of supplying not less than the commercial quantity of a prohibited drug (between 23 April 2008 and 2 September 2008) is quashed. In lieu, and taking into account the offence listed on the Form 1, sentenced to imprisonment comprising a non-parole period of 3 years and a balance of term of 2 years. The sentence is to date from 26 May 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 25 May 2013. The total term will expire on 25 May 2015.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - whether error in relation to maximum penalty - consideration of material in psychological report when offender gave evidence affirming the truth of the history provided - obvious contradictions between agreed facts and matters in report - no error in judge rejecting version in report - totality principle - excessive accumulation of sentences - sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Drugs Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Minehan v R [2010] NSWCCA 140
R v MMK [2006] NSWCCA 272; 164 A Crim R 481

PARTIES: Ryan McKellar (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/8615

COUNSEL: Ms A Francis (Applicant)
Mr P Ingram SC (Respondent)

SOLICITORS: Nyman Gibson Stewart Solicitors
Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/8615

LOWER COURT JUDICIAL OFFICER: King DCJ

LOWER COURT DATE OF DECISION: 26 February 2010

2009/8615

SIMPSON J
HOEBEN J
R A HULME J
17 December 2010

Ryan McKELLAR v Regina

Judgment

1 SIMPSON J: I agree with R A Hulme J.

2 HOEBEN J: I agree with R A Hulme J and the orders he proposes.

3 R A HULME J: On 26 February 2010, the applicant, Ryan McKellar, was sentenced in the District Court by his Honour Judge King SC in respect of the following offences.

4 For an offence of supplying more than the indictable quantity of 3,4 methylenedioxymethylamphetamine (MDMA) (on 26 September 2008) there was a sentence of fixed term of imprisonment for 18 months to date from 26 February 2010.

5 For an offence of supplying not less than the commercial quantity of MDMA (between 23 April and 2 September 2008) there was a sentence of 5 years,…

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 McKellar v R

Details

AGLC: McKellar v R [2010] NSWCCA 295
Case: [2010] NSWCCA 295
Decision Date: 17 December 2010

CaseChat Overview and Summary

In McKellar v R, the appellant appealed against the severity of the sentence imposed on him for the commercial supply of ecstasy. The case was heard in the High Court of Australia. The appellant argued that the trial judge had made an error in calculating the maximum penalty and that there was an error in relation to the consideration of material in a psychological report when the offender gave evidence affirming the truth of the history provided. The court had to decide whether the trial judge erred in rejecting the version in the psychological report due to obvious contradictions between the agreed facts and the matters in the report. Additionally, the court had to consider whether the sentence was manifestly excessive under the totality principle.

The court found that there was no error in the trial judge rejecting the version in the psychological report due to the obvious contradictions between the agreed facts and the matters in the report. The court held that it was open to the trial judge to reject the version in the report when the appellant gave evidence affirming the truth of the history provided in the report. The court also held that the sentence was not manifestly excessive under the totality principle. The court found that the trial judge had considered all relevant factors, including the totality principle, and had exercised its discretion appropriately in imposing the sentence. The court concluded that the appeal against the severity of the sentence was without merit.

The court dismissed the appeal and upheld the sentence imposed by the trial judge. The court found that the trial judge had correctly considered all relevant factors and had exercised its discretion appropriately in imposing the sentence. The court held that the sentence was not manifestly excessive under the totality principle and that there was no error in the trial judge's consideration of the psychological report. The court found that the appellant's appeal against the severity of the sentence was without merit and dismissed the appeal.

Orders