1. Crown appeal allowed. 2. Sentences imposed on the Respondent in the District Court on 6 August 2010 quashed. 3. In their place, the Respondent is sentenced as follows: (i) on the first count, sentenced to a fixed term of imprisonment of two years and three months commencing on 16 August 2006 and expiring on 15 November 2008, (ii) on the second count, sentenced to a non-parole period of six years commencing on 16 August 2007 and expiring on 15 August 2013 with a balance of term of two years commencing on 16 August 2013 and expiring on 15 August 2015, (iii) on the fourth count, sentenced to imprisonment by way of a non-parole period of 11 years commencing on 16 August 2008 and expiring on 15 August 2019, with a balance of term of five years commencing on 16 August 2019 and expiring on 15 August 2024. 4. The Respondent will be eligible for release on parole on 16 August 2019.
Catchwords:
CRIMINAL LAW - Crown appeal on sentence - Respondent convicted at trial of three offences - supply large commercial quantity of methylamphetamine - supply commercial quantity of MDMA - supply MDMA - Respondent a principal in drug supply enterprise - standard non-parole period offences - errors in determination of objective seriousness - limited relevance of non-dissemination of drugs into community - markedly excessive weight given to Respondent's medical condition - subjective factors allowed to overwhelm objective seriousness of offences - failure to give proper regard to standard non-parole periods - sentences manifestly inadequate - Respondent resentenced
[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.
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AGLC
R v Achurch [2011] NSWCCA 186
Case
[2011] NSWCCA 186
Decision Date
CaseChat Overview and Summary
The respondent, Achurch, was convicted at trial of three offences: supplying a large commercial quantity of methylamphetamine, supplying a commercial quantity of MDMA, and supplying MDMA. The Crown appealed the sentences imposed by the primary judge, arguing they were manifestly inadequate. The appeal was heard in the court of appeal.
The legal issues before the court included whether the primary judge erred in determining the objective seriousness of the offences. The court also needed to consider whether the judge gave proper regard to the standard non-parole periods for these offences and whether the sentences were manifestly inadequate. The appeal raised concerns about the appropriate weight given to the respondent's medical condition and the relevance of the non-dissemination of drugs into the community.
The court found that the primary judge had erred in determining the objective seriousness of the offences. The judge had given markedly excessive weight to the respondent's medical condition, allowing subjective factors to overwhelm the objective seriousness of the crimes committed. The court also noted that the judge had failed to give proper regard to the standard non-parole periods for the offences. As a result, the sentences imposed were manifestly inadequate. The court resentenced the respondent, taking into account the appropriate factors and ensuring the sentences reflected the seriousness of the offences committed.
The final orders included the respondent being resentenced, with specific details of the new sentences provided by the court of appeal. The court emphasised the importance of properly considering the objective seriousness of the offences, the standard non-parole periods, and the relevance of the non-dissemination of drugs into the community. The respondent's medical condition was to be considered, but not to the extent that it overshadowed the objective factors of the case.