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R v Anscombe

R v Anscombe

Case [2021] NSWDC 540 7 October 2021

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District Court

New South Wales

Medium Neutral Citation: R v Anscombe [2021] NSWDC 540
Hearing dates: 17 December 2020; 20 and 26 August 2021
Date of orders: 7 October 2021
Decision date: 07 October 2021
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
1 You are sentenced to an aggregate term of imprisonment of 2 years and 22 days.
2 Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is to be served by way of an Intensive Correction Order in the community.

Catchwords:
SENTENCING – Drug offences – Supply and possess prohibited drug – Mitigating factors – Remorse – Rehabilitation – Subjective considerations on sentence – Drug addiction – Hardship

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002
Bugmy v The Queen (2013) 249 CLR 571
DPP (Cth) v Maxwell [2013] VSCA 50
DPP v De La Rosa [2010] NSWCCA 194
Fisher v R [2021] NSWCCA 91
Green v R; Quinn v R (2011) 244 CLR 462
Henry v R (1999) 46 NSWLR 346
Karout v R [2019] NSWCCA 253
Kelley v R [2021] NSWCCA 173
Mandranis v R [2021] NSWCCA 97
Markarian v The Queen [2005] HCA 25
Muldrock vThe Queen (2011) 244 CLR 120
Petkos v R [2020] NSWCCA 55
R v Edwards (1996) 90 A Crim R 510
R v Fangaloka [2019] NSWCCA 173
R v Fangaloka,Casella v R [2019] NSWCCA 201
R v Millwood [2012] NSWCCA 2
R v Pullen [2018] NSWCCA 264
Rossall v R [2021] NSWCCA 200

Category: Sentence
Parties: Regina
Felicity Anscombe
Representation:
Counsel:
Ian McLachlan (Defence)
Solicitors:
Omar Juweinat (Aquila lawyers)
Amanda Kerr (ODPP)

File Number(s): 2019/350642
Publication restriction: N/A

Judgment

The offender Felicity Anscombe, born in 1969, is before the court for sentence for supply prohibited drug greater than the commercial quantity, being 1517.74 grams of Gamma Butyrolactone (GBL), contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, for which the maximum penalty is 20 years imprisonment and for which the standard non-parole period is 10 years imprisonment, and for the offence of Deal with Proceeds of Crime, being $2680, contrary to section 193C(2) of the Crimes Act 1900, for which the maximum penalty is 3 years imprisonment.
There are also two Form 1 matters which the offender asks me to take into account when sentencing her and which attach to the supply prohibited drug charge. These are possess prohibited drug, being 9 grams of cannabis, and possess restricted substance, being 72 tablets of Valium.
The agreed facts are as follows:
In September 2019 there was an investigation into the supply of prohibited drugs in the Illawarra area. During the course of the investigation, it was established that the co-accused Taryn Mandranis was supplying GBL and methylamphetamine, sometimes from his business premises in Fairy Meadow.
The co-accused regularly travelled to the premises…

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 Anscombe

Details

AGLC: R v Anscombe [2021] NSWDC 540
Case: [2021] NSWDC 540
Decision Date: 07 October 2021

CaseChat Overview and Summary

The case of R v Anscombe was heard before the District Court of New South Wales, where the defendant, Anscombe, faced charges related to the supply and possession of a prohibited drug. The dispute involved the appropriate sentence to be imposed on Anscombe, taking into account various mitigating factors, including his remorse, the prospect of rehabilitation, and the subjective considerations relevant to his drug addiction and personal hardships.

The court was required to decide on the appropriate sentence, balancing the severity of the offence against Anscombe's personal circumstances and prospects for rehabilitation. The primary legal issues included the assessment of mitigating factors such as Anscombe's expressed remorse, his drug addiction, and the potential for rehabilitation. The court also had to consider the statutory provisions under the Crimes (Sentencing Procedure) Act 1999 to determine whether an alternative to imprisonment could be applied.

In delivering the judgment, the court acknowledged Anscombe's remorse and the impact of his drug addiction on his actions. It also recognised the potential for rehabilitation and the personal hardships he faced. After weighing these factors against the seriousness of the offence, the court decided that Anscombe should be sentenced to an aggregate term of imprisonment of 2 years and 22 days. However, pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence was to be served by way of an Intensive Correction Order in the community.

The final orders of the court included the imposition of an aggregate term of imprisonment of 2 years and 22 days, to be served as an Intensive Correction Order in the community. This decision reflects the court's consideration of both the seriousness of the offence and the mitigating factors presented by Anscombe.

Orders

Orders of the court

1 You are sentenced to an aggregate term of imprisonment of 2 years and 22 days.

2 Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is to be served by way of an Intensive Correction Order in the community.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Anscombe [2021] NSWDC 540

Most Recent Citation

R v Esho [2023] NSWDC 195

Cases Citing This Decision

R v Esho [2023] NSWDC 195
Citation 1 (Para 33)

…Mr Strickland referred me to a number of authorities, particularly R v Anscombe [2021] NSWDC 540, a decision of Weinstein DCJ (as his Honour then was) and R v Mason [2022] NSWDC 351, a decision of Mahony SC DCJ. Whilst reminding me that no individual case can or should be treated as a precedent governing the result…

See all citing cases →

Cases Cited

Rossall v R [2021] NSWCCA 200
Citation 1 (Para 84)

…ing is subject to my observations about moral culpability, to which see below: Fisher v R [2021] NSWCCA 91, Kelley v R [2021] NSWCCA 173, Rossall v R [2021] NSWCCA 200.…
Kelley v R [2021] NSWCCA 173
Citation 2 (Para 84)

…bjective seriousness. This finding is subject to my observations about moral culpability, to which see below: Fisher v R [2021] NSWCCA 91, Kelley v R [2021] NSWCCA 173, Rossall v R [2021] NSWCCA 200.…
Mandranis v The Queen [2021] NSWCCA 97
Citation 3 (Para 8)

…he matter of the co-offender, Taryn James Mandranis, along with his criminal history. I note that an appeal was allowed in that matter: Mandranis v R [2021] NSWCCA 97, to which see below.…
Fisher v R; R v Fisher [2021] NSWCCA 91
Citation 4 (Para 84)

…en the low and mid-range of objective seriousness. This finding is subject to my observations about moral culpability, to which see below: Fisher v R [2021] NSWCCA 91, Kelley v R [2021] NSWCCA 173, Rossall v R [2021] NSWCCA 200.…
Petkos v R [2020] NSWCCA 55
Citation 5 (Para 83)

…That point was made by Hamill J in Petkos v R [2020] NSWCCA 55, when his Honour said that at the heart of the decision in Maxwell was the uncontroversial proposition that the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. In this particular case, it is…
Karout v R [2019] NSWCCA 253
Citation 6 (Para 124)

…ntencing Act) and I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253) and R v Mandranis . Taking into account the subjective case of the offender and the purposes of sentencing, and in particular that the offender is c…
Casella v R [2019] NSWCCA 201
Citation 7 (Para 124)

…mpose an ICO (s66(1) of the Sentencing Act) and I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253) and R v Mandranis . Taking into account the subjective case of the offender and the purposes of sentencing, and in par…
R v Fangaloka [2019] NSWCCA 173
Citation 8 (Para 123)

…In R v Fangaloka [2019] NSWCCA 173 and more recently Mandranis v R , the court discussed the effect of the competing purposes of sentencing on the consideration of whether a sentence of imprisonment should be served in custody or by way of an ICO.…
R v Pullen [2018] NSWCCA 264
Citation 9 (Para 124)

…nt consideration when determining whether to impose an ICO (s66(1) of the Sentencing Act) and I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253) and R v Mandranis . Taking into account the subjective case of the offen…
Bugmy v The Queen [2013] HCA 37
Citation 10 (Para 92)

…ffects of this disadvantage do not diminish with the passage of time and should be given full weight in this sentencing exercise: Bugmy v The Queen (2013) 249 CLR 571. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2, where her Honour said that a person in the offende…
DPP (Cth) v Maxwell [2013] VSCA 50
Citation 11 (Para 82)

…mount in comparison to the value of commercial quantities of other illicit substances and bearing in mind the maximum penalty. In DPP (Cth) v Maxwell [2013] VSCA 50, following a review of sentencing practices for offences involving the importation of GBL, the court said:…
R v Millwood [2012] NSWCCA 2
Citation 12 (Para 92)

…this sentencing exercise: Bugmy v The Queen (2013) 249 CLR 571. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2, where her Honour said that a person in the offender’s position does not bear equal responsibility with the offender who had a normal or advantaged chi…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 13 (Para 102)

…The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike. Of course each sentence must also be determined taking into accoun…
Muldrock v The Queen [2011] HCA 39
Citation 14 (Para 118)

…As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 15 (Para 94)

…In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are to some extent present here. In particular, I find that the state of the offender’s mental health likely contributed to, and is linked to the commission of the offences, in the sense that it was her background of disadvantage which caused…
Markarian v The Queen [2005] HCA 25
Citation 16 (Para 119)

…vant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances ( Markarian v The Queen [2005] HCA 25).…
R v Henry [1999] NSWCA 111
Citation 17 (Para 91)

…r, that are relevant to her sentencing, as it permits me to understand what she did, why she did it and what she proposes to do about it: Henry v R (1999) 46 NSWLR 346.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 106)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Anscombe [2021] NSWDC 540
Hearing dates:	17 December 2020; 20 and 26 August 2021
Date of orders:	7 October 2021
Decision date:	07 October 2021
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	1 You are sentenced to an aggregate term of imprisonment of 2 years and 22 days. 2 Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is to be served by way of an Intensive Correction Order in the community.
Catchwords:	SENTENCING – Drug offences – Supply and possess prohibited drug – Mitigating factors – Remorse – Rehabilitation – Subjective considerations on sentence – Drug addiction – Hardship
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 Bugmy v The Queen (2013) 249 CLR 571 DPP (Cth) v Maxwell [2013] VSCA 50 DPP v De La Rosa [2010] NSWCCA 194 Fisher v R [2021] NSWCCA 91 Green v R; Quinn v R (2011) 244 CLR 462 Henry v R (1999) 46 NSWLR 346 Karout v R [2019] NSWCCA 253 Kelley v R [2021] NSWCCA 173 Mandranis v R [2021] NSWCCA 97 Markarian v The Queen [2005] HCA 25 Muldrock vThe Queen (2011) 244 CLR 120 Petkos v R [2020] NSWCCA 55 R v Edwards (1996) 90 A Crim R 510 R v Fangaloka [2019] NSWCCA 173 R v Fangaloka,Casella v R [2019] NSWCCA 201 R v Millwood [2012] NSWCCA 2 R v Pullen [2018] NSWCCA 264 Rossall v R [2021] NSWCCA 200
Category:	Sentence
Parties:	Regina Felicity Anscombe
Representation:	Counsel: Ian McLachlan (Defence) Solicitors: Omar Juweinat (Aquila lawyers) Amanda Kerr (ODPP)
File Number(s):	2019/350642
Publication restriction:	N/A