Postlewaight v The Queen - [2007] NSWCCA 230

New South Wales
Court of Criminal Appeal

CITATION: Postlewaight v R [2007] NSWCCA 230

HEARING DATE(S): 11/7/07

JUDGMENT DATE:
2 August 2007

JUDGMENT OF: Tobias JA at 1; Latham J at 2; Mathews AJ at 3

DECISION: 1. Leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed by Sweeney DCJ on 13 October 2006 quashed. 4. In lieu, a sentence to imprisonment consisting of a non-parole period of one year, to date from 8 October 2006 and to expire on 7 October 2007, with an additional term of two years, to commence on 8 October 2007 and to expire on 7 October 2009.

CATCHWORDS: Sentencing appeal - plea of guilty to being knowingly concerned in the supply of cocaine - applicant's role in offence overestimated by sentencing judge - sentence above normal range for this offence - sentence manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

PARTIES: Jeremy George Postlewaight v R

FILE NUMBER(S): CCA 2007/894

COUNSEL: P Boulten SC (Appl)
J A Girdham (Crown)

SOLICITORS: William O'Brien Solicitors (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0623

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 13/10/06

2007/894

TOBIAS JA
LATHAM J
MATHEWS AJ
THURSDAY 2 AUGUST 2007

JEREMY GEORGE POSTLEWAIGHT v R

Judgment

1 TOBIAS AJ: I agree with Mathews AJ.

2 LATHAM J: I agree with Mathews AJ.

3 MATHEWS AJ: The applicant seeks leave to appeal against the severity of a sentence imposed by Sweeney DCJ at the Sydney District Court on 13 October 2006. Her Honour sentenced the applicant to imprisonment comprising a non-parole period of three years, to commence on 8 October 2006, with a balance of one year. This followed the applicant’s plea of guilty to one count of being knowingly concerned in the supply of a prohibited drug, namely 5.2 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Two other offences under s 25(1), each concerning 28.4 grams of cocaine, were taken into account by her Honour on a Form 1.

4 In sentencing the applicant, her Honour had regard to a relatively brief statement of facts, a statement made by a co-offender Saxon Ball, and the transcript of several intercepted telephone conversations involving another co-offender, John Kazzi.

5 From these documents the following facts emerged. In the second half of 2004 Ball started to purchase quantities of cocaine, generally in one ounce lots, from Kazzi. The cocaine was partly for his own use, Ball said, and partly for resale. The usual pattern was for the transaction to take place at Kazzi’s apartment at Bondi. However on three occasions, in January and February 2006, Kazzi arranged for Ball to drive his car to a particular place at a specified time. On each of these occasions the applicant went to Ball’s car and placed in it the quantity of cocaine which Ball had previously arranged…

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 Postlewaight v The Queen

Details

AGLC: Postlewaight v The Queen [2007] NSWCCA 230
Case: [2007] NSWCCA 230
Decision Date: 2 August 2007

CaseChat Overview and Summary

The case before the court involved the appellant, Postlewaight, who had pleaded guilty to being knowingly concerned in the supply of cocaine. The Crown sought an appeal against the sentence imposed on the appellant, arguing it was too lenient. The appellant, in turn, appealed the sentence, contending it was manifestly excessive and had overestimated his role in the offence. The case was heard in the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive and whether the appellant's role in the offence had been overestimated. The court had to consider the principles of sentencing, the nature and circumstances of the offence, and the role of the appellant in the commission of the offence. The court also needed to assess if the sentence imposed was above the normal range for this type of offence.

In its decision, the court found that the appellant's role in the offence had indeed been overestimated by the sentencing judge, leading to a sentence that was above the normal range for this type of offence. The court considered the totality of the circumstances and concluded that the sentence was manifestly excessive. The court noted that the sentencing judge had placed undue emphasis on the appellant's role in the offence, which had resulted in an inflated sentence. The court further found that the sentence did not reflect the appropriate balance between deterrence, denunciation, and rehabilitation.

Consequently, the court allowed the appellant's appeal against sentence and ordered that the matter be remitted to the sentencing court for re-sentencing. The court emphasised that the re-sentencing should properly reflect the appellant's actual role in the offence and be within the appropriate range for this type of offence. The court did not specify the precise sentence to be imposed, leaving that matter to the re-sentencing court.

Orders