Pauls v The King - [2024] NSWCCA 123

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pauls v R [2024] NSWCCA 123
Hearing dates: 8 July 2024
Date of orders: 15 July 2024
Decision date: 15 July 2024
Before: Mitchelmore JA at [1];
Kirk JA at [60];
Davies J at [61]
Decision:
(1)   Grant the applicant an extension of time to file an application for leave to appeal to 24 May 2024.
(2)   Grant leave to appeal.
(3)   Dismiss the appeal.

Catchwords:
CRIME — appeals — appeals against sentence — whether sentencing judge failed to make findings regarding mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) —— whether reasons inadequate — error resulting in re-sentence — no lesser sentence warranted

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 21A(3)
Crimes Act 1900 (NSW), s 93T(1A)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases Cited:
Bhatia v R [2024] NSWCCA 28
Bott v R [2023] NSWCCA 255
Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
Kahler v R (Cth) [2021] NSWCCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lee, Matthew v R [2016] NSWCCA 146
Masters v R [2019] NSWCCA 233
R v Keyte (2000) 78 SASR 68
R v Sami Dario (District Court (NSW), 23 April 2024, unrep)
STB v R [2024] NSWCCA 36

Category: Principal judgment
Parties: Sabri Pauls (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Chhabra (Applicant)
V Garrity (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/54765
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

13 September 2022

Before:

Craigie SC DCJ

File Number(s):

2021/54765

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 13 September 2022, the applicant was sentenced to an aggregate sentence of imprisonment for 7 years, with a non-parole period of 4 years, after pleading guilty to two charges of supply prohibited drug not less than a large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), one charge of supply prohibited drug not less than a commercial quantity contrary to s 25(1) of the Drug Misuse and Trafficking Act and one charge of knowingly participate in a criminal group contrary to s 93T(1A) of the Crimes Act 1900 (NSW). Three further offences were taken into account on a Form 1.

The charges arose as a result of a police investigation during which investigators discovered two plastic drums on the property adjacent to the applicant’s property containing 7.652 kilograms of Gamma-Butyrolactone (GBL) and 0.032 grams of GBL, which they substituted with an inert substance. They subsequently observed the applicant approach the drums and, after realising the drugs had been replaced with another substance, inspect the drums. The investigators executed a search warrant on the applicant’s premises and…

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 Pauls v The King

Details

AGLC: Pauls v The King [2024] NSWCCA 123
Case: [2024] NSWCCA 123
Decision Date: 15 July 2024

CaseChat Overview and Summary

Pauls was convicted of a serious crime and was sentenced by the Court of Criminal Appeal. The appeal was against the sentence imposed, arguing that the sentencing judge did not adequately consider certain mitigating factors under section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The appellant contended that the failure to properly address these factors led to an inadequate assessment of the sentence and that the error necessitated a re-sentencing. However, it was also argued that a lesser sentence was not warranted given the nature of the offence.

The court examined whether the sentencing judge's failure to make explicit findings about mitigating factors constituted a material error that required re-sentencing. The court considered the adequacy of the reasons provided by the sentencing judge and whether this omission had any effect on the final sentence. Additionally, the court needed to determine if the error was significant enough to warrant a re-sentencing or if the sentence imposed was appropriate despite the procedural error.

The Court of Criminal Appeal held that while the sentencing judge did not explicitly address certain mitigating factors, this omission did not constitute a material error that would require re-sentencing. The court found that the reasons provided were sufficient to understand the basis of the sentence, and that the error did not impact the overall appropriateness of the sentence. Consequently, the appeal against the sentence was dismissed, and no re-sentencing was ordered.

Orders