Beech-Jones CJ at CL at [1]; R A Hulme J at [2]; Dhanji J at [3].
Decision:
(1) Grant leave to appeal;
(2) Dismiss the appeal.
Catchwords:
CRIMINAL LAW – appeal against sentence – aggregate sentence – whether manifestly excessive – drug manufacturing and supply offences – apex of organisation - objective gravity of offending – sentences imposed are within the available range – leave to appeal granted – appeal dismissed
Counsel: M Thangaraj SC with S Pararajasingham (Applicant) C Everson SC with J Sfinas (Crown)
Solicitors: Korn Tlais Defence Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):
2013/385351
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
17 February 2017
Before:
Buscombe DCJ
File Number(s):
2013/385351
Judgment
BEECH-JONES CJ at CL: I agree with Dhanji J and the orders his Honour proposes.
R A HULME J: I agree that the aggregate sentence imposed upon the applicant was commensurate with all the circumstances, importantly including the totality of criminality of the serious offending described in the statement of agreed facts. I agree with the orders proposed by Dhanji J.
DHANJI J: The applicant, Mr Shane Mitchell, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed on him by Buscombe DCJ on 17 February 2017 in the District Court at…
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.
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Details
AGLC
Mitchell v The Queen [2021] NSWCCA 306
Case
[2021] NSWCCA 306
Decision Date
CaseChat Overview and Summary
Mitchell was convicted of drug manufacturing and supply offences, and sentenced to an aggregate term of imprisonment. Mitchell appealed against his sentence, arguing it was manifestly excessive. The court was tasked with determining whether the sentence imposed was within the available range and appropriately reflected the objective gravity of the offending. The court examined the nature of the offences, the role of the appellant within the organisation, and the appropriate range of sentences for such crimes. It concluded that the sentence was not manifestly excessive and was within the available range. The court granted leave to appeal but dismissed the appeal, affirming the original sentence.