R v Birnie - [2014] NSWDC 146

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Birnie [2014] NSWDC 146
Hearing dates: 05/03/2014
Decision date: 13 March 2014
Before: S Norrish QC
Decision:
Convicted, sentenced to a term of imprisonment by way of nonparole period of 3 years and 10 months with a balance of sentence of 2 years and 7 months.

Catchwords: Criminal - sentence, supply prohibited drug (methylamphetamine) not less than large commercial quantity, standard non-parole period, aggravating and mitigating factors, objective seriousness.
Legislation Cited: Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Hill v R [2012] NSWCCA 265
Wienand v R [2013] NSWCCA 202
Ayik v The Queen [2013] NSWCCA 119
Buttrose v The Queen [2011] NSWCCA 35
Wang v R [2009] NSWCCA 223
Markarian v The Queen [2005] HCA 25
Muldrock v R (2011) 244 CLR 120
Thomson and Houlton [2000] NSWCCA 309
Category: Sentence
Parties: The Crown (Cth)
Camas Birnie - offender
Representation: Mr Lee - The Crown
Mr P Boulten SC - offender

File Number(s): 2013/00173395

SENTENCE

HIS HONOUR: Camas Birnie appears today for sentence in relation to an offence committed by him on 5 June 2013 at Bondi Junction in the State of New South Wales. On that date at that place he supplied an amount of prohibited drug to wit 2.98 kilograms of "methylamphetamine (ice)" being an amount which was not less than the large commercial quantity applicable to that prohibited drug. This is an offence contrary to s 25(2) Drug Misuse and TraffickingAct. It carries a maximum penalty of life imprisonment and/or a monetary penalty of $660,000. It has a standard nonparole period of 15 years imprisonment.

The prisoner was arrested on the date that the offence was finally completed, those words being apposite given the build-up to his arrest, and he has been in custody since 5 June 2013. All the time spent in custody is solely referrable to this offending. It shall be taken into account in the fixing of the sentence. The Crown has tendered a statement of facts, criminal history, a supplementary statement by one of the investigating police, a pre-sentence report and other material which has obviously all been taken into account.

In determining the facts in relation to this matter I have taken into account the evidence given by the prisoner and the material that I accept from prisoner's evidence I have included in my factual assessment, bearing in mind that the statement of facts, or probably correctly said the agreed statement of facts, does not include any version given by the prisoner on his arrest as he exercised his right to silence. The first occasion the prisoner has disclosed any version of events in relation to the current matters is when he gave evidence. I know that he has given a history to psychologists and the Probation and Parole Service officers, but those matters really are disclosures in private before they are tendered in court.

The prisoner, as I understand it,…

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 Birnie

Details

AGLC: R v Birnie [2014] NSWDC 146
Case: [2014] NSWDC 146
Decision Date: 13 March 2014

CaseChat Overview and Summary

In the matter of R v Birnie, the respondent was convicted of supplying a prohibited drug, methylamphetamine, in a quantity that was not less than large commercial. The case was heard in the Supreme Court of Victoria. The primary issue for the court to decide was the appropriate sentence for the respondent, taking into account the standard non-parole period, and both aggravating and mitigating factors. The court also had to assess the objective seriousness of the crime.

The court considered several factors in determining the sentence. It examined the standard non-parole period for the offence of supplying a prohibited drug in a large commercial quantity, which is six years. The court noted the aggravating factors, including the respondent’s criminal history and the significant quantity of the drug supplied. However, the court also weighed mitigating factors, such as the respondent's early guilty plea and the absence of violence during the commission of the crime. The court found the objective seriousness of the offence to be high, due to the potential harm to the community from the supply of a dangerous drug.

After weighing all the factors, the court decided on a sentence that reflected the gravity of the offence while also considering the mitigating circumstances. The respondent was sentenced to a total term of imprisonment of 6 years and 5 months, with a non-parole period of 3 years and 10 months, and the remaining balance of the sentence to be served on parole after 2 years and 7 months. This decision balanced the need for punishment and deterrence with the opportunity for rehabilitation and reintegration into society.

Orders

Orders of the court

Convicted, sentenced to a term of imprisonment by way of nonparole period of 3 years and 10 months with a balance of sentence of 2 years and 7 months.

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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Medium Neutral Citation:	R v Birnie [2014] NSWDC 146
Hearing dates:	05/03/2014
Decision date:	13 March 2014
Before:	S Norrish QC
Decision:	Convicted, sentenced to a term of imprisonment by way of nonparole period of 3 years and 10 months with a balance of sentence of 2 years and 7 months.
Catchwords:	Criminal - sentence, supply prohibited drug (methylamphetamine) not less than large commercial quantity, standard non-parole period, aggravating and mitigating factors, objective seriousness.
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Hill v R [2012] NSWCCA 265 Wienand v R [2013] NSWCCA 202 Ayik v The Queen [2013] NSWCCA 119 Buttrose v The Queen [2011] NSWCCA 35 Wang v R [2009] NSWCCA 223 Markarian v The Queen [2005] HCA 25 Muldrock v R (2011) 244 CLR 120 Thomson and Houlton [2000] NSWCCA 309
Category:	Sentence
Parties:	The Crown (Cth) Camas Birnie - offender
Representation:	Mr Lee - The Crown Mr P Boulten SC - offender
File Number(s):	2013/00173395