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Ninness v R

Ninness v R

Case [2014] NSWCCA 288 3 December 2014

Criminal Liability

Sentencing

Mental Health in Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ninness v R [2014] NSWCCA 288
Hearing dates: 17 October 2014
Decision date: 03 December 2014
Before: Hoeben CJ at CL at [1]
Hidden J at [2]
Davies J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - supply prohibited drugs - knowingly deal with proceeds of crime - sentence - aggregate sentence imposed - whether applicant suffered from Attention Deficit Hyperactivity Disorder - whether he would receive medication for ADHD in custody - whether sentencing judge's conclusion open on the evidence - whether standard non-parole period given determinative significance - whether assessment of objective seriousness made - whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Cao v Regina [2013] NSWCCA 321
Delaney v R; R v Delaney [2013] NSWCCA 150
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Golossian v R [2013] NSWCCA 311
Jeffrey v R [2012] NSWCCA 36
Kentwell v The Queen [2014] HCA 37
Luu v R [2008] NSWCCA 285
McBeth v R [2009] NSWCCA 235
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Blair [2005] NSWCCA 78
R v Cheikh [2004] NSWCCA 448
R v Dang [2005] NSWCCA 430
R v Leroy (1984) 13 A Crim R 469
R v Muldrock [2012] NSWCCA 108
R v Nemes (Court of Criminal Appeal(NSW), 28 August 1997, unrep)
R v Wilkinson (No 5) [2009] NSWSC 432
Redfern v R [2012] NSWCCA 178
Simpson v R [2014] NSWCCA 23
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Peter Charles Ninness (Applicant)
Crown
Representation: Counsel:
M Thangaraj SC & J J Korn (Applicant)
N Williams (Crown)
Solicitors:
KM Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/332186
Decision under appeal

Date of Decision:

2013-06-26 00:00:00

Before:

Maiden DCJ

Judgment

HOEBEN CJ AT CL: I agree with Davies J.

HIDDEN J: I agree with Davies J.

DAVIES J: The Applicant pleaded guilty to three offences as follows:

1. Knowingly deal with the proceeds of crime being an amount of $258,985. The maximum penalty for this offence is 15 years imprisonment;

2. Supplying not less than the commercial quantity of a prohibited drug, namely 365.09g of methylamphetamine. The maximum penalty is 20 years imprisonment and/or 3,500 penalty units. The offence carries a standard non-parole period of 10 years.

3. Supply a prohibited drug being 15.620kg of cannabis. The maximum penalty is 10 years imprisonment and/or 2000 penalty units.

On 26 June 2013 the Applicant was sentenced by Judge Maiden SC to an aggregate sentence of a non-parole period of 6 years and 9 months commencing 16 October 2012 and expiring 16 July 2019 with an additional term of 2 years and 3 months expiring 15 October 2021.…

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 Ninness v R

Details

AGLC: Ninness v The Queen [2014] NSWCCA 288
Case: [2014] NSWCCA 288
Decision Date: 03 December 2014

CaseChat Overview and Summary

The applicant, Ninness, appealed against the sentence imposed for multiple drug-related offences. The applicant was found guilty of possessing and supplying prohibited drugs, and dealing with the proceeds of crime. The appeal was heard by the Court of Appeal, where the applicant sought a reduction in his sentence. The applicant raised several grounds for appeal, including whether the sentencing judge should have taken into account his diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), and whether he would receive medication for ADHD in custody. The applicant also argued that the standard non-parole period given to him was determinative and that the sentencing judge had not properly assessed the objective seriousness of his offending.

The court considered the applicant's arguments and examined the sentencing judge's reasons for imposing the sentence. The court noted that the sentencing judge was aware of the applicant's diagnosis of ADHD, but did not consider it a mitigating factor. The court held that the sentencing judge's conclusion that ADHD was not a mitigating factor was open on the evidence. The court also found that the sentencing judge had given determinative significance to the standard non-parole period, but had also considered other factors, such as the objective seriousness of the offending. The court held that the sentencing judge had made a proper assessment of the objective seriousness of the offending and that the sentence was not manifestly excessive.

The court dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The court held that the sentencing judge had considered all relevant factors and had not erred in law or made a mistake of fact. The court also held that the standard non-parole period was a relevant consideration, but that the sentencing judge had not given it determinative significance. The court found that the sentence was proportionate to the seriousness of the offending and that the applicant's arguments did not warrant a reduction in sentence. The appeal was therefore dismissed, and the sentence imposed by the sentencing judge was affirmed.

Orders