R v AZ

Case [2011] NSWCCA 43 22 March 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v AZ [2011] NSWCCA 43
Hearing dates: 14 February 2011
Decision date: 22 March 2011
Before: McClellan CJ at CL at 1
Johnson J at 2
McCallum J at 109
Decision:
1. Crown appeal allowed.
2. Sentences imposed upon the Respondent in the District Court on 30 August 2010 are quashed.
3. In their place - (i) upon the charge of supplying a large commercial quantity of a prohibited drug, taking into account the offences on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of five years and two months commencing on 26 November 2008 and expiring on 25 January 2014, with a balance of term of two years and 10 months commencing on 26 January 2014 and expiring on 25 November 2016; (ii) upon the charge of possession of a prohibited firearm, the Respondent is sentenced to imprisonment comprising a non-parole period of one year, one month and two weeks commencing on 12 August 2013 and expiring on 25 September 2014, with a balance of term of seven months and two weeks commencing on 26 September 2014 and expiring on 9 May 2015.
4. The earliest date upon which the Respondent will be entitled to release on parole is 25 September 2014.

Catchwords: CRIMINAL LAW - sentence - Crown appeal - supply large commercial quantity of prohibited drug (MDMA/ecstasy) - possess prohibited firearm - keyring pistol - assistance to authorities - errors in assessment of objective seriousness of offences - error in approach to concurrence and accumulation - sentences manifestly inadequate - Respondent resentenced
Legislation Cited: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited:
R v JW [2010] NSWCCA 49; 199 A Crim R 486
Wang v R [2009] NSWCCA 223
Luu v R [2008] NSWCCA 285
Hristovski v R [2010] NSWCCA 129
R v McEvoy [2010] NSWCCA 110
R v Sellars [2010] NSWCCA 133
R v Morgan (1993) 70 A Crim R 368
R v George [2004] NSWCCA 247; 149 A Crim R 38
R v Green; R v Quinn [2010] NSWCCA 313
R v Araya [2005] NSWCCA 283; 155 A Crim R 555
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Krstic [2005] NSWCCA 391
R v Tolley [2004] NSWCCA 165
R v Thalari [2009] NSWCCA 170; 75 NSWLR 307
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
SZ v R [2007] NSWCCA 19; 168 A Crim R 248
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
Hejazi v R [2009] NSWCCA 282
Category: Principal judgment
Parties: Regina (Appellant)
AZ (Respondent)

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 AZ

Details

AGLC: R v AZ [2011] NSWCCA 43
Case: [2011] NSWCCA 43
Decision Date: 22 March 2011

CaseChat Overview and Summary

The case of R v AZ involved the respondent, who was convicted for supplying a large commercial quantity of a prohibited drug (MDMA/ecstasy) and possessing a prohibited firearm, specifically a keyring pistol. The trial judge handed down a sentence of imprisonment, which the Crown deemed manifestly inadequate. Consequently, the Crown appealed the sentence on the grounds that it did not adequately reflect the objective seriousness of the respondent's offending.

The primary legal issue before the court was whether the trial judge erred in assessing the objective seriousness of the respondent's offending, specifically in relation to the drug supply and firearm possession charges. The court also needed to determine if the trial judge made an error in approach regarding the concurrence and accumulation of the charges. Furthermore, the court considered whether the sentences imposed were manifestly inadequate.

The court found that the trial judge erred in assessing the objective seriousness of the offences. The judge did not fully appreciate the degree of responsibility and culpability of the respondent in relation to the drug supply charge. Additionally, the court held that the trial judge erred in not adequately considering the concurrence and accumulation of the offences, as well as the impact of the possession of the prohibited firearm. As a result, the court concluded that the sentences imposed were manifestly inadequate and ordered the respondent be resentenced. The court directed that the appropriate sentence be determined by the re-sentencing judge, taking into account the errors identified in the appeal.

Orders