R v Busby - [2018] NSWCCA 136

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Busby [2018] NSWCCA 136
Hearing dates: 4 May 2018
Decision date: 06 July 2018
Before: Hoeben CJ at CL [1]
Walton J [2]
Button J [3]
Decision:
(1) The two pleas of guilty entered by the respondent, Ethan Alexander Busby, are rejected.
(2) The convictions entered against, and sentences imposed upon, the respondent by Acting Judge Armitage are quashed.
(3) The two outstanding charges against the respondent are remitted to the District Court for trial.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – asserted manifest inadequacy and other asserted errors – underlying issue – evidence of respondent on sentence inconsistent with pleas of guilty– requisite mental element with regard to quantity in state drug offences – pleas of guilty rejected – convictions and sentences imposed upon the respondent quashed – remitted to District Court for trial
Legislation Cited: Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Alhassan v R [2017] NSWCCA 73
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248
Dunn v The Queen (1986) 32 A Crim R 203
R v CWW (1993) 32 NSWLR 348; 70 A Crim R 517
Siafakas v R [2016] NSWCCA 100
Yousef Jidah v R [2014] NSWCCA 270
Category: Principal judgment
Parties: Regina
Ethan Alexander Busby
Representation:
Counsel:
B Hatfield (Crown)
I Lloyd QC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Criminal Defence Group (Respondent)

File Number(s): 2015/337189
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 December 2017

Before:

Acting Judge Armitage

File Number(s):

2015/337189

HOEBEN CJ AT CL: I agree with the analysis of Button J and the orders which he proposes.
WALTON J: I agree with Button J.
BUTTON J:

Introduction

On 15 March 2017, Mr Ethan Alexander Busby (the respondent) pleaded guilty to two offences contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act). The first count averred that, on 16 November 2015 in a suburb of Sydney, he knowingly took part in the supply of the prohibited drug MDMA (commonly known as ecstasy) in the amount of 20.88 kilograms, that amount being more than the large commercial quantity of that drug.
As at 16 November 2015, the large commercial quantity of ecstasy to be found in Schedule 1 (the Schedule) of the Act was 0.5 kilogram or 500 grams.
The second count averred that, on the same date and at the same location, the respondent knowingly took part in the supply of the prohibited drug cocaine in the amount of 2.23 kilograms, that amount being more than the large commercial quantity of that drug.
On the same date, the large commercial quantity of cocaine to be found in the same Schedule was 1 kilogram.
Each offence carried a maximum penalty of imprisonment for life, along with a standard non-parole period of 15…

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 Busby

Details

AGLC: R v Busby [2018] NSWCCA 136
Case: [2018] NSWCCA 136
Decision Date: 06 July 2018

CaseChat Overview and Summary

The case of R v Busby involved the Crown appealing against a sentence imposed on the respondent, Busby, who had been found guilty of drug-related offences. The Crown argued that the sentence was manifestly inadequate and that there were other errors in the proceedings. The case was heard in the higher court following an appeal from the District Court. The primary dispute centred on whether the sentence imposed was appropriate given the nature and circumstances of the offences, and whether there were procedural errors that warranted a re-trial.

The legal issues before the court were whether the sentence imposed was manifestly inadequate and whether there were errors in the trial that required the convictions and sentences to be quashed. A significant issue was the inconsistency between the respondent's evidence during the sentencing hearing and his earlier pleas of guilty. Additionally, the court had to consider the requisite mental element for the quantity of drugs involved in the offences, which was a critical factor in determining the severity of the sentence.

The court found that the sentence imposed was indeed manifestly inadequate given the gravity of the offences and the respondent's conduct. Furthermore, the court identified that there were errors in the trial process that undermined the fairness and integrity of the proceedings. Notably, the court highlighted the inconsistency in the respondent's evidence during sentencing, which contradicted his earlier pleas of guilty. Consequently, the court quashed the convictions and sentences, and ordered a re-trial in the District Court. This decision underscored the importance of aligning the respondent's evidence with his pleas and ensuring that the requisite mental element for the quantity of drugs was properly considered.

Orders