Nassar, Athena Hope v The Queen - [2009] NSWCCA 100

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
NASSAR, Athena Hope v R [2009] NSWCCA 100

FILE NUMBER(S):
2007/14125

HEARING DATE(S):
5 November 2008

JUDGMENT DATE:
8 April 2009

PARTIES:
Athena Hope Nassar (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Hall J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0841

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

LOWER COURT DATE OF DECISION:
11 June 2008 (date of sentence)

COUNSEL:
C Loukas (Applicant)
G Rowling (Respondent)

SOLICITORS:
Aboriginal Legal Service (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – sentencing - leave to appeal against sentences – appeal against severity of sentences – whether sentences manifestly excessive – whether starting point for sentences too high – leave granted and appeal allowed

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

CATEGORY:
Principal judgment

CASES CITED:
Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Braithwaite v R [2005] NSWCCA 451
McDonald v R [1994] FCA 956; (1994) 71 A Crim R 370
Morgan (1993) 70 A Crim R 368
R v Hayes [2001] NSWCCA 358
R v Rushby [1977] 1 NSWLR 594
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
Van Can HA v R [2008] NSWCCA 141

TEXTS CITED:

DECISION:
1. Grant leave to appeal and allow the appeal.
2. Quash the sentences imposed upon the applicant by Nield DCJ on 11 June 2008.
3. In lieu thereof the applicant is sentenced to the following terms of imprisonment:
(a) On Count 4: To imprisonment for 1 year with a non-parole period of 8 months from 8 June 2008 to 7 February 2009 with a balance of term of 4 months from 8 February 2009 to 7 June 2009.
(b) On Count 2: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 December 2008 to 7 January 2010 with a balance of term of 8 months from 8 January 2010 to 7 September 2010.
(c) On Count 3: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 March 2009 to 7 April 2010 with a balance of term of 8 months from 8 April 2010 to 7 December 2010.
(d) On Count 1: To imprisonment for 2 years and 6 months with a non-parole period of 6 months from 8 December 2009 to 7 June 2010 with a balance of term of 2 years from 8 June 2010 to 7 June 2012.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/14125
McCLELLAN CJ at CL
HALL J
HARRISON J
8 April 2009

NASSAR, Athena Hope v R

Judgment

McCLELLAN CJ at CL: In this matter I agree that the sentence should be reduced. For the reasons given by Hall J I am satisfied that the starting…

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: [2009] NSWCCA 100
Decision Date: 8 April 2009

CaseChat Overview and Summary

The case before the court involved Athena Hope Nassar, the appellant, who was appealing against the severity of sentences imposed by the County Court of Victoria. The appellant was convicted on two counts of drug trafficking and one count of possessing an unlawful firearm. The Crown sought and obtained a sentence that the appellant considered to be manifestly excessive. The appeal was heard in the Court of Appeal, which granted leave for the appeal against the severity of the sentences.

The central legal issue before the Court of Appeal was whether the sentences imposed on the appellant were manifestly excessive. Additionally, the court considered whether the starting point for the sentences was too high, potentially leading to an unfair outcome. The appellant argued that the sentences did not adequately reflect the circumstances of the case, particularly the mitigating factors that were presented during sentencing. The Crown, on the other hand, maintained that the sentences were appropriate given the seriousness of the offences.

The Court of Appeal found that the sentences imposed were indeed manifestly excessive. The court was concerned that the starting point used for the sentences did not adequately account for the mitigating factors presented by the appellant. The court emphasised that the starting point should reflect the totality of the circumstances, including any mitigating factors, and that it should not lead to a sentence that is disproportionate to the offence. As a result, the Court of Appeal allowed the appeal and set aside the sentences imposed by the County Court. The matter was remitted back to the County Court for re-sentencing.

The final orders of the Court of Appeal were that leave to appeal against the sentences was granted, and the appeal was allowed. The sentences imposed by the County Court were set aside, and the matter was remitted back for re-sentencing, with directions to ensure that the starting point and overall sentence reflected the totality of the circumstances and any mitigating factors.

Orders