Owen v R

Case [2017] NSWCCA 54 31 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Owen v R [2017] NSWCCA 54
Hearing dates: 16 March 2017
Date of orders: 31 March 2017
Decision date: 31 March 2017
Before: Hoeben CJ at CL at [1]
Garling J at [79]
Beech-Jones J at [83]
Decision:
Leave to appeal against sentence granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – one charge of supply a firearm to an unauthorised person – two charges of supply a commercial quantity of a prohibited drug – other offences on a Form 1 – comprehensive analysis by sentencing judge of extent of planning, role, financial gain, motivation, quantity and purity of prohibited drug – applicant did not give evidence in sentence proceedings – subjective history provided by psychologist – whether sentence imposed was manifestly excessive – all relevant sentencing issues considered by sentencing judge – criminality of offending substantial – limited value of statistics – sentence stern but not excessive – leave to appeal against sentence granted but appeal dismissed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) – s 33
Drug Misuse and Trafficking Act 1985 (NSW) – s 25(2)
Firearms Act 1996 (NSW) – s 51(1)(a)
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
Hili v the Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Kemp v R [2014] NSWCCA 153
Lowe v R [2015] NSWCCA 46
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Munda v Western Australia [2013] HCA 38; 249 CLR 600
R v Nai Poon [2003] NSWCCA 42; 56 NSWLR 284
R v Parkinson [2010] NSWCCA 89
Ryan v R [2009] NSWCCA 183
Sant v R [2014] NSWCCA 261
Category: Principal judgment
Parties: Paul Owen – Applicant
Regina – Respondent Crown
Representation:
Counsel:
G Jones – Applicant
N L Williams – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/231771
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

1 February 2016

Before:

Woodburne SC DCJ

File Number(s):

2014/231771

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 2 October 2015 the applicant entered pleas of guilty in relation to the following offences:

One charge of supply a firearm to a person unauthorised to possess it, contrary to s 51(1)(a) of the Firearms Act 1996 (NSW) ("the firearms offence") for which the maximum penalty was imprisonment for 5 years.

Two charges of supply a prohibited drug being not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the supply prohibited drug offences"), for which the maximum penalty was imprisonment for 20 years and/or a fine of $385,000 with a standard non-parole period of 10 years.

On 1 February 2016, the applicant appeared before Woodburne SC DCJ for sentence. The…

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 Owen v R

Details

AGLC: Owen v R [2017] NSWCCA 54
Case: [2017] NSWCCA 54
Decision Date: 31 March 2017

CaseChat Overview and Summary

In the case of Owen v R, the appellant sought to appeal the sentence imposed by the sentencing judge for various drug-related and firearm offences. The appellant was found guilty of supplying a firearm to an unauthorised person, supplying a commercial quantity of a prohibited drug on two occasions, and other related charges. The appeal was heard by the court, which was tasked with determining whether the sentence imposed was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, considering the comprehensive analysis by the sentencing judge of the extent of planning, role, financial gain, motivation, quantity, and purity of the prohibited drug. The appellant did not provide evidence in the sentence proceedings and relied on a subjective history provided by a psychologist. The court was required to consider all relevant sentencing issues and assess the criminality of the offending, while also considering the limited value of statistics.

The court found that all relevant sentencing issues had been considered by the sentencing judge, and the criminality of the offending was substantial. The court emphasised the importance of the sentencing judge's analysis of the various factors involved in the case. While the sentence was stern, the court concluded that it was not excessive. Consequently, the leave to appeal against the sentence was granted, but the appeal was ultimately dismissed. The court's decision underscores the importance of a comprehensive analysis of the relevant factors in sentencing matters and the limited value of statistics in assessing the criminality of offending.

Orders