Hoeben CJ at CL at [1]; Davies J at [36]; Adamson J at [37]
Decision:
(1) Leave to appeal granted. (2) The appeal is dismissed.
Catchwords:
SENTENCE APPEAL – two counts of deemed supply of heroin and methylamphetamine – matters on a Form 1 including deal with proceeds of crime of $41,200 – ex tempore judgment by sentencing judge – modest custodial sentence (head sentence of 2 years and 3 months with non-parole period of 1 year) – applicant suffering from kidney disease and on wait list for kidney transplant – requirement for kidney dialysis on a daily basis – whether sentencing judge properly took into account applicant’s kidney condition – whether sentencing judge treated applicant’s criminal record as an aggravating factor – whether sentencing judge entitled to treat as an aggravating factor that drugs and money were found in the applicant’s house – whether sentence was manifestly excessive – leave to appeal against sentence granted but appeal dismissed.
Solicitors: N Digges – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):
2014/262351
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
26 May 2017
Before:
Haesler SC DCJ
File Number(s):
2014/262351
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant pleaded guilty in the District Court to the following two
counts:
Count 1 – The deemed supply of 9.18g of heroin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act). The maximum penalty is imprisonment for 15 years and/or a 2000 penalty unit fine.
Count 2 – The deemed supply of 13.94g of methylamphetamine, contrary to the DMT Act. The maximum penalty is imprisonment for 15 years and/or a 2000 penalty unit fine.
The applicant sought to have the following further offences taken into account on a Form 1 in relation to Count 2:
Knowingly deal with the proceeds of crime, being…
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 Parente v R
Sign in free to access the full text
Details
AGLC
Parente v R [2017] NSWCCA 285
Case
[2017] NSWCCA 285
Decision Date
CaseChat Overview and Summary
Parente v R involved an appeal by the applicant against his sentence following his conviction on two counts of deemed supply of heroin and methylamphetamine. The applicant had entered into a deal with the proceeds of crime amounting to $41,200. The sentencing judge handed down an ex tempore judgment, imposing a custodial sentence of 2 years and 3 months with a non-parole period of 1 year. The applicant, who was suffering from kidney disease and on the wait list for a kidney transplant, required daily kidney dialysis. The appeal raised several issues, including whether the sentencing judge had properly taken into account the applicant’s kidney condition, whether the judge treated the applicant’s criminal record as an aggravating factor, whether the judge was entitled to treat as an aggravating factor the fact that drugs and money were found in the applicant’s house, and whether the sentence was manifestly excessive. The appeal was allowed, but the appeal against sentence was dismissed.
The central legal issues in this case were whether the sentencing judge had properly exercised their discretion in imposing the sentence and whether the sentence was manifestly excessive. The applicant argued that the sentencing judge had failed to adequately consider his kidney condition and the fact that he required daily dialysis. The applicant also argued that the sentencing judge had treated his criminal record as an aggravating factor and that the presence of drugs and money in his house should not have been considered as an aggravating factor. The Crown, on the other hand, argued that the sentencing judge had exercised their discretion appropriately and that the sentence was not manifestly excessive.
The court examined the sentencing judge’s reasons and found that the judge had indeed considered the applicant’s kidney condition and the need for daily dialysis. The court held that the sentencing judge was entitled to treat the applicant’s criminal record as an aggravating factor and that the presence of drugs and money in the applicant’s house was properly considered as an aggravating factor. The court also found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed. The appeal against sentence was therefore dismissed.
No orders were made as the appeal against sentence was dismissed. The applicant's sentence of 2 years and 3 months with a non-parole period of 1 year stood as imposed by the sentencing judge.