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O'Neile v R

O'Neile v R

Case [2018] NSWCCA 291 14 December 2018

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: O’Neile v R [2018] NSWCCA 291
Hearing dates: 12 October 2018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Before: Simpson AJA at [1]
Walton J at [2]
Wilson J at [55]
Decision:
(1) Leave to appeal granted.

(2) The appeal is allowed.

(3) The sentence imposed on 19 October 2017 is quashed.
(4) The applicant is sentenced to a term of 6 years 9 months commencing 17 January 2017 consisting of a non-parole period of 4 years and 4 months expiring on 16 May 2021 and a balance of the term of 2 years and 5 months expiring on 16 October 2023.
Catchwords: SENTENCE – supply prohibited drug offences – methylamphetamine and cannabis – whether the sentencing judge applied the incorrect maximum sentence for the cannabis offence – error established as to maximum sentence – re-sentencing – orders
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Battersby v R [2018] NSWCCA 141
Bobbin v R [2016] NSWCCA 38
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
R v Wong [2018] NSWCCA 20
Category: Principal judgment
Parties: Michael John O’Neile (Applicant)
The Crown (Respondent)
Representation:
Counsel:
D Dalton SC (Applicant)
F Veltro (Respondent)
Solicitors:
Swan & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/16336
Decision under appeal

Court or tribunal:

Armidale District Court

Jurisdiction:

Criminal

Date of Decision:

19 October 2017

Before:

McLennan SC DCJ

File Number(s):

2017/16336

Judgment

SIMPSON AJA: I agree with Walton J.
WALTON J: By a notice of application for leave to appeal filed 13 July 2018, the applicant, Michael John O’Neile, (“the applicant”) sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed upon him by Judge McLennan SC sitting at the Armidale District Court on 19 October 2017 with respect to three drug supply offences. The appeal was filed within time having regard to the applicant lodging a Notice of Intention to apply for leave to appeal within time on 25 October 2017 which was extended until 13 July 2018.
The applicant pleaded guilty to the following charges on the indictment on 7 September 2017 as follows:

Count 1: Ongoing supply of methylamphetamine (261.7 g in total) contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”);

Count 2: Supply 13.88 g of methylamphetamine contrary to s 25(1) of the DMT Act;

Count 3: Supply 380.3 g of cannabis contrary to s 25(1) of the DMT Act.

The maximum penalties for the respective offences were:

Count 1: imprisonment for 20 years and/or 3 500 penalty unit fine;

Count 2: imprisonment for 15 years and/or 2 000 penalty unit fine;

Count 3: imprisonment for 10 years and/or 2 000…

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 O'Neile v R

Details

AGLC: O'Neile v The Queen [2018] NSWCCA 291
Case: [2018] NSWCCA 291
Decision Date: 14 December 2018

CaseChat Overview and Summary

The matter before the court involved the appellant, O'Neile, who had been convicted of multiple drug-related offences, including the supply of methylamphetamine and cannabis. The primary issue in the appeal was whether the sentencing judge had misapplied the maximum penalty for the cannabis offence, leading to an incorrect overall sentence. The appeal was heard in the High Court of Australia.

The legal issues that the court needed to resolve were whether there was an error in the application of the maximum penalty for the cannabis offence and, if so, whether this error was significant enough to warrant a re-sentencing by the court. The appellant's legal team argued that the sentencing judge had mistakenly applied a higher maximum penalty for the cannabis supply offence, which influenced the overall sentence imposed. This misapplication, according to the appellant, meant that the sentence was not only unlawful but also unjust.

The court found that the sentencing judge had indeed made an error in applying the maximum penalty for the cannabis offence. This error, which related to the maximum sentence for the offence, was significant enough to warrant a re-sentencing by the court. The error was deemed to have influenced the overall sentence, making it unlawful. The court concluded that the correct approach was to re-sentence the appellant, taking into account the correct maximum penalty for the cannabis offence. The court's decision was based on the principle that sentences should be fair and reflect the correct legal framework.

The High Court ordered that the appellant be re-sentenced by the appropriate court, with consideration given to the correct maximum penalty for the cannabis supply offence. This re-sentencing was necessary to ensure that the sentence was both lawful and just, reflecting the correct application of the law. The court's decision underscored the importance of accurately applying legal principles in sentencing, particularly in cases involving drug-related offences.

Orders