PG v The King - [2024] NSWCCA 141

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PG v R [2024] NSWCCA 141
Hearing dates: 12 July 2024
Date of orders: 02 August 2024
Decision date: 02 August 2024
Before: Adamson JA at [1];
Wilson J at [2];
Faulkner J at [48]
Decision:
(1) Grant leave to appeal against the sentence imposed on 18 August 2023;
(2) Dismiss the appeal;
(3) Publication of the judgment is restricted to the parties, pending their advice to the Registrar, within 7 days from today, of any redactions that may be necessary to permit unrestricted publication.

Catchwords:
CRIME – appeal against sentence – where discount applied per s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) – in addition to discount for early pleas of guilty – drug supply offences and firearms possession offence – determining appropriate s 23 discount – where sentencing judge suggested discount percentages at sentence hearing but applied different percentages at judgment – complaints relating to procedural fairness and failure to provide reasons

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 23, 33
Criminal Appeal Act 1912 (NSW), s 5
Drugs Misuse and Trafficking Act 1985 (NSW), s 25
Firearms Act 1996 (NSW), ss 4C, 7

Category: Principal judgment
Parties: PG (Applicant)
Rex (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00076101; 2022/00314186
Publication restriction: Publication initially restricted to the parties pending advice to the Court as to any redactions required prior to publication
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 August 2023

Before:

McGrath SC DCJ

File Number(s):

2021/00076101; 2022/00314186

JUDGMENT

ADAMSON JA: I agree with Wilson J.
WILSON J: By Notice of Appeal filed 16 May 2024, the applicant, PG, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence of 4 years imprisonment, with a non-parole period (“NPP”) of 2 years and 9 months imprisonment, that was imposed upon him on 18 August 2023 by his Honour Judge McGrath SC DCJ. The applicant was sentenced for a total of five offences which he had committed over two discrete periods. At the time of the second set of offending conduct, the applicant was at conditional liberty, having been granted bail pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) with sentence pending for the first set of offending conduct. The sequence numbers (“seq”), offences, maximum penalties and any standard non-parole period (“SNPP”) that applies, and the indicative sentences announced by the sentencing judge, are as follows.

2021 offences (H77972820)

Sequence

Offence

Maximum Penalty

Indicative Sentence

3

1

Supply Prohibited Drug (83.63 grams of methylamphetamine)

s 25(1) Drugs Misuse and Trafficking Act 1985 (NSW)

Taking into account a further such charge relating to 9.24 grams of methylamphetamine

15 years imprisonment and / or a fine of 2000 penalty units

15 months imprisonment

4

Supply Prohibited Drug (170.1…

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 PG v The King

Details

AGLC: PG v The King [2024] NSWCCA 141
Case: [2024] NSWCCA 141
Decision Date: 02 August 2024

CaseChat Overview and Summary

The matter before the court involved an appeal against the sentence imposed by the sentencing judge in the Supreme Court of New South Wales. The appellant, PG, was convicted of multiple offences, including drug supply and firearms possession. PG appealed against the sentence on the basis that the discount applied under section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was incorrectly calculated and that the sentencing judge failed to provide adequate reasons for the discount applied. The central issue before the court was whether the sentencing judge erred in applying the discount under section 23, and if so, whether this error was so significant as to warrant a re-sentencing.

The court considered the sentencing judge's approach to applying the discount under section 23, which allows for a discount in the sentence if the offender pleads guilty early. The court noted that while the sentencing judge had suggested certain discount percentages during the sentencing hearing, the percentages ultimately applied in the judgment were different. The appellant argued that this discrepancy amounted to a failure to provide reasons and procedural unfairness. The court acknowledged the importance of the sentencing judge providing clear and reasoned justification for the discount applied. However, the court found that the overall sentence was still within the appropriate range and that the error in the application of the discount did not result in a manifestly inadequate sentence. The court held that while the sentencing judge's approach was not ideal, it did not reach the threshold of unfairness that would warrant a re-sentencing.

The court determined that the sentencing judge's approach to the discount under section 23, while not ideal, did not result in a manifestly inadequate sentence. The court found that the overall sentence was still within the appropriate range and that the error did not reach the threshold of unfairness that would warrant a re-sentencing. The appeal was thus dismissed. The court did not make any orders altering the sentence imposed by the sentencing judge.

Orders