Mori v The Queen - [2021] NSWCCA 32

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mori v R [2021] NSWCCA 32
Hearing dates: 4 June 2020
Decision date: 10 March 2021
Before: Johnson J at [1];
Davies J at [2];
Ierace J at [3]
Decision:
(1) Extend time for the filing of the notice of appeal to 5 November 2019.
(2) Grant leave to appeal.
(3) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sentencing judge erred in assessment of objective seriousness of offence – Whether sentencing judge erred by giving inadequate discount for guilty plea – Whether applicant’s legal representation in sentencing court incompetent – Drug offences – Manufacture prohibited drug – Large commercial quantity – Supply prohibited drug – Deemed supply – Possess prohibited drug precursor

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 24A, 25, Sch 1
Drug Misuse and Trafficking Regulation 2011 (NSW), Sch 1

Cases Cited:
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Category: Principal judgment
Parties: Michael Kenji Mori (Applicant)
Regina (Respondent)
Representation:
Counsel:
In person (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/20214
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

24 July 2017

Before:

Ellis DCJ

File Number(s):

2015/20214

Judgment

JOHNSON J: I agree with Ierace J.
DAVIES J: I agree with Ierace J.
IERACE J: The applicant seeks leave to appeal against a sentence of imprisonment imposed on him in the District Court at Newcastle by his Honour Judge Ellis on 24 July 2017, following his pleas of guilty to three charges pursuant to the Drug Misuse and Trafficking Act 1985 (NSW) (the Act) concerning the manufacture and possession of prohibited drugs and the possession of a precursor to be used in the manufacture of a prohibited drug.
The applicant appeared on his application without legal representation. He filed a notice of intention to apply for leave to appeal on 27 July 2017. No appeal was filed, and the Registrar acceded to an application to extend the period to 20 July 2018. It appears from material before the Court that between July 2018 and September/October 2019, the applicant mistakenly believed that an application had been filed. On 18 December 2018, the applicant filed a further application for an extension of time, explaining that in September or October 2018 he was advised by Legal Aid NSW to seek an extension, however he was unable to access the correct forms from prison and, as a result, sent an earlier version of the application in an incorrect form. The application was refused by the Registrar on 22 January 2019, who stated that leave would be determined by the Court.…

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 Mori v The Queen

Details

AGLC: Mori v The Queen [2021] NSWCCA 32
Case: [2021] NSWCCA 32
Decision Date: 10 March 2021

CaseChat Overview and Summary

The case of Mori v The Queen involved an appeal by the respondent, Mori, against the sentence imposed by the sentencing judge. The appeal was based on several grounds, including whether the sentencing judge erred in assessing the objective seriousness of the offence, whether the judge erred by giving an inadequate discount for the guilty plea, and whether the applicant's legal representation in the sentencing court was incompetent. The offences in question involved the manufacture, supply, and possession of a prohibited drug in large commercial quantities.

The legal issues before the court were whether the sentencing judge had erred in their assessment of the seriousness of the offence, whether the discount for the guilty plea was inadequate, and whether the legal representation provided to Mori was incompetent. The court was required to consider the principles of sentencing, the principles of appeal against sentence, and the standard of legal representation expected in criminal proceedings.

The court found that the sentencing judge did not err in their assessment of the objective seriousness of the offence. The court held that the quantity of the drugs involved and the nature of the offences warranted a severe sentence. The court also found that the discount for the guilty plea was not inadequate, as it was consistent with the principles of sentencing and the specific circumstances of the case. The court further determined that Mori's legal representation was not incompetent, as the evidence did not support such a finding. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the sentencing judge was upheld. The court did not order any variation of the sentence.

Orders