Naberezhnov v The Queen - [2021] NSWCCA 142

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Naberezhnov v R [2021] NSWCCA 142
Hearing dates: 28 May 2021
Date of orders: 7 July 2021
Decision date: 07 July 2021
Before: Harrison J at [1]
Adamson J at [2]
Bellew J at [8]
Decision:
(1) The time in which to file the application for leave to appeal against sentence is extended to 21 December 2020.
(2) Leave to appeal against sentence is granted.
(3) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to an offence of supplying a prohibited drug at a dance festival – Where in assessing the objective seriousness of the offending the sentencing judge took judicial notice of the fact that a number of people had died as a consequence of such offending which occurred on a regular basis and was often committed by young people of good backgrounds who had no criminal convictions –Whether such considerations were relevant to an assessment of objective seriousness as opposed to being relevant to general deterrence – Error established
CRIMINAL LAW – Offences – Application for leave to appeal against sentence – Where applicant pleaded guilty to further counts of ongoing supply of a prohibited drug and offering to supply a prohibited drug – Where competing submissions had been made as to the nature and extent of the applicant’s role and the objective seriousness of his offending – Where the Crown’s submissions as to objective seriousness were advanced partly on the basis of an erroneous assertion which was unsupported by the evidence – Where the sentencing judge adopted the Crown’s submissions in the absence of the exposition of the reasoning process which led him to make that determination – Where the sentencing judge failed to engage with a submission advanced on behalf of the offender as to his role – Importance of the assessment of objective seriousness of offending in the sentencing process – Necessity for a judge to give proper reasons as an incident of the judicial process – Error established
CRIMINAL LAW – Offences – Re-sentence – Objective seriousness of the offending – Significant role played by the offender in respect of each count – Need for both general and personal deterrence – No lesser sentence warranted – Appeal against sentence dismissed

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No. 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
FL v R [2020] NSWCCA 114
MRN v R [2006] NSWCCA 155
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Murray v R [2017] NSWCCA 262
Pettitt v Dunkley [1971] 1 NSWLR 376
PO v R [2020] NSWCCA 129
R v Cage [2006] NSWCCA 304
R v Campbell [2014] NSWCCA 102
R…

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

Case: [2021] NSWCCA 142
Decision Date: 07 July 2021

CaseChat Overview and Summary

Naberezhnov v The Queen involved the applicant, who pleaded guilty to various drug-related offences, seeking leave to appeal against his sentence. The applicant was found guilty of supplying a prohibited drug at a dance festival, along with other related charges. The primary legal issue was whether the sentencing judge appropriately assessed the objective seriousness of the offending, considering the impact of the drug supply on public health and safety, particularly given the context of fatalities associated with similar offences. Additionally, the court had to determine if the judge's failure to properly reason and engage with the applicant's submissions constituted an error.

The court examined the sentencing judge's approach to assessing the objective seriousness of the offences, noting that while the judge took into account the broader consequences of such crimes, this did not necessarily equate to an appropriate assessment of objective seriousness. The judge's reliance on the Crown's submissions, which included an unsupported assertion, without a clear reasoning process, was problematic. Furthermore, the judge did not adequately address the applicant's submissions regarding his role in the offending. These factors combined to establish that there was an error in the assessment of the objective seriousness of the offending and in the reasoning process.

In light of the errors identified, the court found that the applicant's significant role in the drug supply warranted a sentence that ensured both general and personal deterrence. Despite the errors, the court concluded that a lesser sentence was not warranted. Consequently, the appeal against the sentence was dismissed, and the original sentence stood.

The court's decision emphasised the importance of correctly assessing the objective seriousness of the offending and the necessity for judges to provide clear and reasoned justifications for their determinations. These aspects are crucial in ensuring the integrity of the sentencing process and maintaining public confidence in the judicial system.

Orders