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N v R; AP v R

N v R; AP v R

Case [2009] NSWCCA 108 17 April 2009

Sentencing

Breach of Trust

Unconscionable Conduct

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: N v R; AP v R [2009] NSWCCA 108
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 31 March 2009

JUDGMENT DATE:
17 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Buddin J at 3

DECISION: Applicant - NN
1 Grant leave to appeal.
2 Allow the appeal.
3 Quash the sentence imposed in the District Court.
4 In substitution therefore sentence the applicant to imprisonment for 6 years 6 months to commence on 21 May 2007 and to expire on 20 November 2013. I specify a non-parole period of 4 years to commence on 21 May 2007 and to expire on 20 May 2011 on which date the applicant will be eligible for release on parole.
Applicant - AP
1 Grant leave to appeal.
2 Allow the appeal.
3 Quash the sentence imposed in the District Court.
4 In substitution therefore sentence the applicant to imprisonment for 6 years to commence on 28 May 2007 and to expire on 27 May 2013. I specify a non-parole period of 3 years 8 months to commence on 28 May 2007 and to expire on 27 January 2011 on which date the applicant will be eligible for release on parole.

CATCHWORDS: Sentencing - possession of marketable quantity of cocaine and aid and abet importation of marketable quantity of cocaine - pleas of guilty and assistance to authorities - whether factual findings open - whether sentences manifestly excessive - parity

LEGISLATION CITED: Crimes Act 1914 (C’th)

CATEGORY: Principal judgment

CASES CITED: Budiman v R (1998) 102 A Crim R 411
Cameron v The Queen (2002) 209 CLR 339
Clarkson v R (2007) 209 FLR 387
Le v R [2006] NSWCCA 136
R v Kaldor (2004) 150 A Crim R 271
R v Kardoulias and Ors (2005) 159 A Crim R 252
R v Klein (2001) 121 A Crim R 90
R v Mas Rivadia and Ors (2004) 61 NSWLR 63
R v Milich [2008] NSWCCA 148
R v Otto (2005) 157 A Crim R 525
R v Paliwala (2005) 153 A Crim R 451
R v Qutami (2001) 127 A Crim R 369
R v Riddell [2009] NSWCCA 96
R v SC [2008] NSWCCA 29
R v Speer [2004] NSWCCA 118
R v To (2007) 172 A Crim R 121
R v Tyler; R v Chalmers (2007) 173 A Crim R 458
R v Wong and Leung (1999) 48 NSWLR 340
The Queen v Olbrich (1999) 199 CLR 270
Wong and Leung v The Queen (2001) 207 CLR 584

PARTIES: NN v R (Applicant)
AP v R (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/16131; 2007/13515

COUNSEL: G Turnbull SC (Applicant NN)
P Hamill SC (Applicant AP)
L Crowley (Crown) (Respondent)

SOLICITORS: Nyman Gibson Stewart (Applicant NN)
Nyman Gibson Stewart (Applicant AP)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0681; 07/11/0677

LOWER…

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 N v R; AP v R

Details

AGLC: N v R; AP v R [2009] NSWCCA 108
Case: [2009] NSWCCA 108
Decision Date: 17 April 2009

CaseChat Overview and Summary

The respondents, N and AP, were convicted of possessing a marketable quantity of cocaine and aiding and abetting the importation of a marketable quantity of cocaine. Both pleaded guilty and provided assistance to the authorities. The primary issue before the court was whether the factual findings were open to challenge, and if the sentences imposed were manifestly excessive. The court also considered whether the sentences were commensurate with those of similarly situated offenders.

The court noted that the factual findings were open to challenge, but ultimately upheld the findings of the lower court. The court considered the principles of parity and proportionality in sentencing, and found that the sentences were not manifestly excessive. The court noted that the respondents had pleaded guilty and provided assistance to the authorities, which were relevant mitigating factors. The court also considered the nature and circumstances of the offences, including the quantity of drugs involved and the role of the respondents in the criminal activity.

In light of the above, the court found that the sentences imposed were appropriate and proportionate to the offences committed. The court rejected the respondents' argument that the sentences were excessive, noting that the lower court had considered all relevant factors in arriving at the sentences. The court also noted that the sentences were consistent with those imposed on similarly situated offenders.

The appeal was dismissed, and the sentences imposed by the lower court were upheld.

Orders