Peachey v The Queen - [2011] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Peachey v R [2011] NSWCCA 30
Hearing dates: Wednesday 2 March 2011
Decision date: 04 March 2011
Before: Hodgson JA at 1
Adams J at 2
Hall J at 3
Decision:
(1) Leave to appeal be granted.
(2) The appeal be dismissed.

Catchwords: SENTENCE APPEAL - offender the apex of organisation - similar prior convictions - sophisticated drug supply network - 14 months involvement - marked difference in criminality between offender and co-accused - no error for lack of parity of sentences - findings as to remorse, rehabilitation and special circumstances - open for trial judge to make - non-parole period not manifestly excessive in light of criminality
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse & Trafficking Act 1985
Cases Cited: Jimmy v Regina [2010] NSWCCA 60
Lowe v The Queen (1984) 154 CLR 606
Regina v Clarke [2009] NSWCCA 49
Regina v Cramp [2004] NSWCCA 264
Regina v Girard [2004] NSWCCA 170
Category: Principal judgment
Parties: Susan Ellen PEACHEY (Applicant)
Regina (Crown)
Representation: Counsel:
J Pickering (Crown)
N Carroll (Applicant)
Solictors:
S Kavanagh (Crown)
George Sten & Co (Applicant)

File Number(s): 2009/12072
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-05-21 00:00:00

Before:

King DCJ

File Number(s):

2009/12072

Judgment

HODGSON JA: I agree with Hall J.

ADAMS J: I agree with Hall J

HALL J: The applicant, Susan Ellen Peachey, has made application for leave to appeal by notice dated 24 November 2010 in respect of sentences imposed by the District Court on 21 May 2010.

The applicant was charged with the following offences:-

Count 1: Knowingly taking part in supply of a prohibited drug, namely, cannabis leaf, being not less than the commercial quantity pursuant to s.25(2), Drug Misuse and Trafficking Act 1985. The maximum penalty for such an offence is a fine of 3,500 penalty units and/or 15 years' imprisonment

Count 2: Knowingly taking part in supply of a prohibited drug, namely, cannabis leaf, being not less than the indictable quantity pursuant to s.25(1), Drug Misuse and Trafficking Act 1985. The maximum penalty for such an offence is a fine of 2,000 penalty units and/or 10 years' imprisonment.

The applicant pleaded guilty to the offence the subject of Count 2, which was accepted in full satisfaction of the indictment.

The sentence imposed upon the applicant was a term of imprisonment for 5 years and 3 months consisting of a non-parole period of 3 years, 11 months and 7 days to commence on 11 October 2009 and to expire on 17 September 2013 with a balance of term of 1 years, 3 months and 24 days to expire on 10 January 2015.

Grounds of appeal

The applicant relied upon four grounds of appeal in the following terms:-

"1. His Honour erred in failing to apply the principles of parity as between the Applicant and the co-offenders involved in the same joint criminal enterprise.

2. His Honour erred in concluding that there were no prospects…

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 Peachey v The Queen

Details

AGLC: Peachey v The Queen [2011] NSWCCA 30
Case: [2011] NSWCCA 30
Decision Date: 04 March 2011

CaseChat Overview and Summary

Peachey appealed against his sentence following a conviction for trafficking in dangerous drugs. The trial judge sentenced Peachey to six years imprisonment with a non-parole period of four years. The appeal was based on the contention that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia. The central issue for the court was whether the sentence imposed by the trial judge was manifestly excessive. In determining this, the court considered whether the sentence reflected the offender's degree of culpability and the objective seriousness of the offending. The court noted that Peachey was at the apex of a sophisticated drug supply network and had been involved for 14 months. The court also noted the marked difference in criminality between Peachey and his co-accused. The court concluded that the trial judge had not erred by failing to ensure parity of sentences between Peachey and his co-accused. The court also noted that findings as to remorse, rehabilitation and special circumstances were open to the trial judge to make and that the non-parole period was not manifestly excessive in light of the criminality. The appeal was dismissed.

The High Court found that the trial judge had properly exercised his discretion in imposing the sentence. The court emphasised that it was not its role to substitute its own view of the appropriate sentence for that of the trial judge. The court found that the trial judge had given appropriate weight to the relevant considerations and that the sentence imposed was not manifestly excessive. The court also noted that the non-parole period represented approximately 57% of the total sentence, which was consistent with other sentences imposed for similar offences.

Orders