Plaisted v The Queen - [2015] NSWCCA 287

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Plaisted v R [2015] NSWCCA 287
Hearing dates: 21 August 2015
Date of orders: 19 November 2015
Decision date: 19 November 2015
Before: Basten JA [1];
Wilson J [11];
RS Hulme AJ [34]
Decision:
By majority
(i) Grant leave to appeal;
(ii) Allow the appeal;
(iii) Quash the sentence imposed by Garling ADCJ;
(iv) Sentence the Applicant to imprisonment for a non-parole period of 7 years commencing on 5 May 2011 together with a balance of term of 4 years commencing on 5 May 2018.
(v) Record as the date upon which it appears to the Court that the Applicant will become for eligible for parole, 5 May 2018.

Catchwords:
CRIMINAL LAW – appeal against sentence – Drug Misuse & Trafficking Act 1985 (NSW) – objective seriousness of offence – offender involved in transport of drugs for syndicate
CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether primary judge failed to distinguish between two offenders and to give sufficient recognition to differences between respective situations
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44; Pt 4, Div 1A
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Criminal Appeal Act 1912 (NSW)
Cases Cited: AMZ v R [2013] NSWCCA 6
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Green v R [2011] HCA 49; (2011) 244 CLR 462
Kentwell v R [2014] HCA 37; (2014) 252 CLR 601
Koh v R [2013] NSWCCA 287
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Category: Principal judgment
Parties: Regina (Crown)
Robert Plaisted (Applicant)
Representation:
Counsel:
Mr H Baker (Crown)
Mr W Hunt with Ms J Paingakulam (Applicant)
Solicitors:
Director of Public Prosecutions (Crown)
Nyman Gibson Miralis (Applicant)

File Number(s): 2011/147501009
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 May 2013

Before:

Garling ADCJ

File Number(s):

2011/147501009

Judgment

BASTEN JA: In circumstances sufficiently explained by R S Hulme AJ, the applicant was sentenced on 20 May 2013 for two offences involving knowing participation in the supply of not less than the large commercial quantity of a prohibited drug. Count 1 involved an amount of approximately 22kg of methylamphetamine; count 2 involved a little over 1kg of heroin.
Because the transaction involving the heroin took place on the same date as one transaction involving methylamphetamine, the sentence on count 2 was wholly concurrent with the sentence imposed for count 1. As it involved a non-parole period of two years imprisonment, with a further term of two years, it is (and will remain) wholly subsumed within the sentence on count 1. It was not apparent from the notice of appeal, or the submissions in support of the appeal, that any challenge was raised as to the sentence on count 2. It may be assumed that there was no application for leave to appeal against that sentence.
With respect to the…

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 Plaisted v The Queen

Details

AGLC: Plaisted v The Queen [2015] NSWCCA 287
Case: [2015] NSWCCA 287
Decision Date: 19 November 2015

CaseChat Overview and Summary

The case before the court involved an appeal against the sentence imposed on the appellant, Plaisted, who was convicted of drug trafficking under the Drug Misuse and Trafficking Act 1985 (NSW). The primary issue for the court was whether the sentence was manifestly excessive. This was predicated on whether the primary judge had failed to distinguish between Plaisted and another offender and had not sufficiently recognised the differences in their respective situations. The appeal also questioned whether the primary judge had adequately considered the objective seriousness of the offence.

The court considered whether the sentence imposed was manifestly excessive in light of the primary judge's failure to adequately distinguish between Plaisted and the other offender. The court examined the primary judge's sentencing remarks and concluded that the primary judge had indeed failed to make the necessary distinctions between the two offenders. The court further noted that the primary judge had not sufficiently recognised the differences between Plaisted's and the other offender's situations, particularly in terms of their respective roles in the drug trafficking syndicate. The court also examined the objective seriousness of the offence and found that the primary judge had failed to adequately consider this aspect in imposing the sentence.

The court allowed the appeal and quashed the sentence imposed by the primary judge. The court ordered that Plaisted be re-sentenced by another judge of the Supreme Court. The court's decision emphasised the importance of distinguishing between offenders and recognising the differences in their respective situations when imposing a sentence. The court also highlighted the need for the primary judge to adequately consider the objective seriousness of the offence when imposing a sentence.

Orders