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Polley v R

Polley v R

Case [2015] NSWCCA 247 11 September 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Polley v R [2015] NSWCCA 247
Hearing dates: 28 July 2015
Decision date: 11 September 2015
Before: Hoeben CJ at CL at [1]
Price J at [53]
Fagan J at [54]
Decision:
(1) Grant leave to appeal.
(2) The appeal is dismissed.

Catchwords: SENTENCE APPEAL – two offences of supplying a prohibited drug – pleas of guilty – MDMA and methylamphetamine – finding of drug trafficking “to a substantial degree” – strong subjective case – good prospects of rehabilitation – nevertheless custodial sentence inevitable – whether applicant’s strong subjective case properly taken into account – whether strong subjective case amounted to “exceptional circumstances” – whether sentence manifestly excessive – circumstances of offending required that effect be given to general deterrence – applicant’s strong subjective case did not amount to exceptional circumstances – proper exercise of sentencing discretion – appeal dismissed.
Legislation Cited: Drug Misuse and Trafficking Act 1985 – s 25(1)
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Bland v R [2014] NSWCCA 82
House v R [1936] HCA 40; 55 CLR 499
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Cacciola [1998] NSWSC 531; 104 A Crim R 178
R v Cahill [2015] NSWCCA 53
R v Clark (NSWCCA, unreported, 5.3.1990)
R v Carrion [2000] NSWCCA 191; 49 NSWLR 149
R v Dodd (1991) 57 A Crim R 349
Regina v Saba [2006] NSWCCA 214
Richardson v R [2013] NSWCCA 218
Smaragdis v R [2010] NSWCCA 276
Wong v R [2001] HCA 64; 207 CLR 584
Yang v R [2012] NSWCCA 49; 219 A Crim R 550
Category: Principal judgment
Parties: Christopher Polley – Applicant
Regina – Respondent Crown
Representation:
Counsel:
I Lloyd QC/R Webb – Applicant
Ms N Adams SC/M Rabsch – Respondent Crown
Solicitors:
S Quinn – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/300629
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

31 October 2014

Before:

Berman SC DCJ

File Number(s):

2013/300629

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty to two offences of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 15 years. There is no standard non-parole period applicable.

Sentence proceedings took place before Berman SC DCJ on 17 and 31 October 2014. His Honour then delivered an ex tempore sentencing judgment. The applicant was sentenced to two concurrent terms of 2 ½ years imprisonment with a non-parole period of 1 year and 3 months, commencing 31 October 2014 and expiring 30 January 2016. The head sentences will expire on 30 April 2017.

Factual background

On 6 October 2013 the applicant, who had just turned 20, was sitting in a white Toyota utility with two friends. Another friend was outside the car. While the police were speaking to these persons,…

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 Polley v R

Details

AGLC: Polley v R [2015] NSWCCA 247
Case: [2015] NSWCCA 247
Decision Date: 11 September 2015

CaseChat Overview and Summary

Polley appealed against his sentence following a conviction for two offences of supplying a prohibited drug, specifically MDMA and methylamphetamine. The court was required to determine whether the applicant's strong subjective case, which included good prospects of rehabilitation, was properly taken into account by the sentencing judge, and whether this amounted to "exceptional circumstances." The court also had to assess whether the sentence was manifestly excessive, and whether the general deterrence principle necessitated an effective custodial sentence.

The court found that while the applicant's prospects of rehabilitation and strong subjective case were indeed considered by the sentencing judge, they did not constitute exceptional circumstances that would warrant a non-custodial sentence. The court emphasised that the nature and circumstances of the offending required the imposition of a custodial sentence to serve the purpose of general deterrence. The court held that the sentence imposed was not manifestly excessive and represented a proper exercise of sentencing discretion by the trial judge.

The appeal was dismissed, affirming the sentence imposed by the lower court. The court determined that the sentencing judge had appropriately balanced the mitigating factors with the need for general deterrence in this case. The circumstances of the offending and the potential impact on the community underscored the necessity of a custodial sentence to uphold the principles of general deterrence.

Orders