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Pannowitz v R

Pannowitz v R

Case [2016] NSWCCA 13 15 February 2016

Sentencing

Totality Principle

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Pannowitz v R [2016] NSWCCA 13
Hearing dates: 1 February 2016
Decision date: 15 February 2016
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Beech-Jones J at [62]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentencing – totality principle – accumulation and concurrency – two offences of drug supply – second offence committed whilst applicant on bail for first offence – three prior offences of drug supply – whether appropriate regard was had to the totality principle when accumulating sentence for second offence – whether sentences manifestly excessive – use of other cases said to be comparable
Cases Cited: Bugmy v The Queen [2013] HCA 37; (2012) 249 CLR 571
Dang v R [2014] NSWCCA 47
House v The King (1936) 55 CLR 499
Huynh v R [2008] NSWCCA 216
Khawaja v R [2014] NSWCCA 80
Pearce v The Queen (1998) 194 CLR 610
Pham v R [2014] NSWCCA 1115
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v Roby [2003] NSWCCA 243
Regina v XX [2009] NSWCCA 115
Stanton v R [2008] NSWCCA 326
Vandeventer v R [2013] NSWCCA 33
Wicks v R [2012] NSWCCA 208
Category: Principal judgment
Parties: Brendon Pannowitz (Applicant)
Crown (Respondent)
Representation:
Counsel:
W Hunt (Applicant)
E Balodis (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/364475
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 January 2015

Before:

McLoughlin DCJ

File Number(s):

2013/364475

Judgment

Hoeben CJ at CL: I agree with Davies J.
Davies J: The Applicant pleaded guilty in the District Court on indictment to one count of supply a prohibited drug namely 62.62 grams of methylamphetamine. The Applicant also pleaded guilty before the Local Court to a further count of supplying a prohibited drug, namely 40.05 grams of methylamphetamine. He was committed to the District Court for sentence. The maximum penalty for each offence is 15 years imprisonment.
In relation to each matter the Applicant asked that a number of matters on a Form 1 be taken into account. Those matters were three counts of deal with suspected proceeds of crime, one count of possessing a prohibited drug being methylamphetamine, and one count of possessing a prohibited weapon being a Taser. The three counts of dealing with suspected proceeds of crime concerned (1) $6,600 in Australian currency (attached to Count 1), (2) $7,000 in Australian currency (attached to Count 2), and (3) concerned various goods including laptops and a medal/coin collection (attached to Count 2). The counts of possessing a prohibited drug and a prohibited weapon were attached to Count 2.
On 23 January 2015 Judge McLoughlin sentenced the Applicant as follows:

On count 1, a fixed term of four years and six months imprisonment…

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 Pannowitz v R

Details

AGLC: Pannowitz v R [2016] NSWCCA 13
Case: [2016] NSWCCA 13
Decision Date: 15 February 2016

CaseChat Overview and Summary

The case of Pannowitz v R involved the appellant, who was convicted of two separate offences of drug supply. The second offence was committed while the appellant was on bail for the first offence. The appellant had three prior convictions for drug supply. The primary legal issues before the court were whether the totality principle was appropriately considered when determining the sentence for the second offence and whether the sentences imposed were manifestly excessive. The court was also asked to consider if the sentences were comparable to those in other cases.

The court examined the principles of sentencing, particularly the totality principle, which requires that the cumulative sentence for all offences should not be excessive. The court considered the nature and seriousness of the offences, the appellant's criminal history, and the principle of accumulation and concurrency. The court emphasised that when sentencing for multiple offences, the total punishment must be proportionate and take into account the nature of the offending and the offender. The court held that while the appellant's criminal history was significant, the sentences must still be proportionate to the individual offences and the totality of offending.

In reaching its decision, the court carefully weighed the factors involved in sentencing. It found that the trial judge had appropriately considered the totality principle and had not imposed a manifestly excessive sentence. The court noted that the sentences for the two drug supply offences were within the range of sentences typically imposed for such offences, and that the cumulative sentence, when viewed in light of the totality principle, was not disproportionate. The court also compared the sentences to those in similar cases and found that the sentences were consistent with those imposed in comparable circumstances.

The final orders of the court were to dismiss the appeal against conviction and sentence, affirming the trial judge's decision. The court confirmed that the sentences imposed were appropriate and did not breach the totality principle. The court held that the cumulative sentence for the two drug supply offences, when considering the appellant's criminal history and the nature of the offending, was proportionate and did not constitute an excessive punishment.

Orders