Legal Research
Cases
R v Anderson

R v Anderson

Case [2012] NSWCCA 175 4 September 2012

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Anderson [2012] NSWCCA 175
Hearing dates: 20 July 2012
Decision date: 04 September 2012
Before: Allsop P at [1]
Davies J at [5]
Campbell J at [58]
Decision:
Crown appeal dismissed

Catchwords: CRIMINAL LAW â€“ sentence â€“ Crown appeal â€“ supply commercial quantity of methylamphetamine â€“ whether sentence manifestly inadequate â€“ credit given for onerous bail conditions â€“ offender not in rehabilitation custody â€“ sentence ordered to avoid returning offender to custody - drug syndicate â€“ relative role of offender â€“ parity whether disparity bespeaks error â€“ sentence lenient but not manifestly inadequate â€“ residual discretion not to uphold appeal.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Case Conferencing Trial Act 2008
Cases Cited: BJT v R [2011] NSWCCA 12
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Hughes v R [2008] NSWCCA 48, (2008) 185 A Crim R 155
R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1
R v Douglas (unreported, NSWCCA, 4 March 1997)
R v Eastaway (unreported, NSWCCA, 19 May 1992)
R v McHugh (1985) 1 NSWLR 588
R v Yuksel; R v Sirtlan [2012] NSWCCA 84
Truss v R [2008] NSWCCA 325
Category: Principal judgment
Parties: Crown (Applicant)
Leah Anderson (Respondent)
Representation: Counsel:
P Ingram SC (Applicant)
C Davenport SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Applicant)
Katsoolis & Co (Respondent)

File Number(s): CCA 2009/283346
Decision under appeal

Date of Decision:

2012-01-23 00:00:00

Before:

Tupman DCJ

File Number(s):

2009/283346

Judgment

ALLSOP P: I have read the draft reasons of Davies J to be delivered. I too was of the view that the residual discretion should be employed not to uphold the Crown's appeal. With the advantage of the full statement of the background contained in Davies J's reasons I am able to state shortly why I participated in the orders of 20 July 2012.

As to ground 1, in appropriate circumstances an allowance can be made for periods on bail and the harshness of, or restrictions on liberty by, conditions of bail: Hughes v R [2008] NSWCCA 48 and Truss v R [2008] NSWCCA 325. Undoubtedly the determination of what is an appropriate allowance is an evaluative judgment with which an appeal court will be reluctant to interfere. Here, however, there is much to be said for the Crown's submissions that the characterisation of the bail conditions as stringent was difficult to justify. Taken as an interference with liberty it could perhaps, be justified. However, in the context of the respondent's circumstances, her desire for family support and her need for a degree of uncomplicated regularity of life supported by loved ones, it was hardly rigorous.

As to grounds 2 and 3, like Davies J, I consider the leniency to verge on inadequacy. The sentence should certainly not be one that is seen to be considered by this Court as adequate to reflect the criminality…

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 R v Anderson

Details

AGLC: R v Anderson [2012] NSWCCA 175
Case: [2012] NSWCCA 175
Decision Date: 04 September 2012

CaseChat Overview and Summary

The appellant, Anderson, was convicted for his involvement in supplying a commercial quantity of methylamphetamine. The Crown appealed the sentence imposed by the primary judge, arguing it was manifestly inadequate. The High Court of Australia was tasked with reviewing the sentence's appropriateness. The court needed to determine whether the sentence was manifestly inadequate, taking into account the onerous bail conditions the offender had endured and the fact that the offender was not in rehabilitation custody at the time of sentencing. The court also considered the offender's role within the drug syndicate and the principle of parity, which examines whether the disparity in sentences bespeaks an error in the sentencing process.

The High Court found that while the sentence was lenient, it was not manifestly inadequate. The court acknowledged the offender's role in the syndicate and the credit given for the onerous bail conditions. However, the court noted that the offender was not in rehabilitation custody and that the sentence was intended to avoid returning the offender to custody. The court held that the sentence was lenient but not manifestly inadequate, and thus, the residual discretion not to uphold the Crown's appeal was exercised.

The court's decision emphasised the importance of considering the offender's role in the syndicate and the credit given for the onerous bail conditions. The court also highlighted the principle of parity, which examines whether the disparity in sentences bespeaks an error in the sentencing process. Ultimately, the court found that the sentence was not manifestly inadequate and declined to uphold the Crown's appeal.

Orders