Nye v The Queen - [2018] NSWCCA 244

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Nye v R [2018] NSWCCA 244
Hearing dates: 31 August 2018
Decision date: 31 October 2018
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – Crown conceded errors by sentencing judge – consideration of re-sentence – whether sentencing judge erred when considering the applicant’s moral culpability for each offence – question of mitigatory duress – no lesser finding of moral culpability warranted – no lesser sentence warranted in law – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(m)
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33
Cases Cited: Campbell v R [2018] NSWCCA 17
DL v The Queen [2018] HCA 32
Category: Principal judgment
Parties: Dylan Michael Nye (Appellant)
Regina (Respondent)
Representation:
Counsel:
T Game SC & D Barrow (Appellant)
T Smith & C Curtis (Respondent)
Solicitors:
WH Parsons & Associates (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/64988
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02 June 2017

Before:

Ingram SC DCJ

File Number(s):

2016/64988

Judgment

HOEBEN CJ AT CL: I agree with Button J and the orders which he proposes.
WALTON J: I agree with Button J.
BUTTON J:

Introduction

Three grounds underpinned this application for leave to appeal against the sentences imposed by his Honour Judge Ingram SC on Dylan Michael Nye (the applicant) for very serious offences to do with prohibited drugs in the District Court at Parramatta on 2 June 2017. The second and third grounds are the subject of concessions by the Crown. As for the first ground, senior counsel for the applicant expressed his contentment at the hearing of the application with this Court taking into account the arguments underpinning that ground on re-sentence, if those concessions were to be accepted. Because of those refinements of the matter, this judgment can be brief, and will focus more on factual matters than legal principle.

Appropriate Crown concessions

The second ground of appeal is as follows: “His Honour erred in finding the applicant’s offending was aggravated by being a series of criminal acts”.
The Crown prosecutor has accepted that, by referring to s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), at page 41 of the remarks on sentence, His Honour erred. That is because, although the applicant was to be sentenced for a number of offences, as the Crown prosecutor has written, he “was to be sentenced in respect of three discrete offences, none of which comprised a series of criminal acts”.
The sub-paragraph in question is as follows:

(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

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 Nye v The Queen

Details

AGLC: Nye v The Queen [2018] NSWCCA 244
Case: [2018] NSWCCA 244
Decision Date: 31 October 2018

CaseChat Overview and Summary

The appellant, Nye, appealed against his sentence in the High Court of Australia. The appeal arose from his conviction for multiple serious criminal offences, including armed robbery and assault. The Crown conceded that the sentencing judge had made errors in the initial sentencing process. The central issue before the court was whether the sentencing judge had erred in assessing the appellant’s moral culpability for each offence and whether the consideration of mitigatory duress warranted a lesser sentence. The court needed to determine if the sentencing judge’s assessment of moral culpability was correct and if a lesser sentence was warranted in law.

The High Court examined the sentencing judge's assessment of the appellant's moral culpability, considering the mitigating factor of duress. The court noted that the sentencing judge had correctly identified the appellant’s involvement in the offences but disagreed with the Crown’s assertion that a lesser finding of moral culpability was warranted. The court held that the sentencing judge had properly considered all relevant factors and concluded that no lesser finding of moral culpability was justified. Consequently, the court found that no lesser sentence was warranted in law. The appeal was dismissed as the court found that the original sentence was appropriate given the appellant's culpability and the nature of the offences.

The High Court’s reasoning focused on the proper assessment of moral culpability and the appropriate weight to be given to mitigating factors. The court emphasised the importance of a balanced approach in sentencing, taking into account both the gravity of the offences and the individual circumstances of the offender. The court concluded that the sentencing judge had exercised their discretion correctly, and the original sentence was just and appropriate. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders