R v Bushell (No 20) - [2023] NSWSC 1456

Supreme Court

New South Wales

Medium Neutral Citation: R v Bushell (No 20) [2023] NSWSC 1456
Hearing dates: 26-28, 31 July, 1-4, 7-10, 14, 16-18, 21-23, 28-31 August, 1, 4-5 September, 10 November 2023
Decision date: 17 November 2023
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) The offender is sentenced to an aggregate sentence of imprisonment being a non-parole period of 12 years’ imprisonment commencing 28 April 2017 and concluding on 27 April 2029, with the balance of term of 6 years’ imprisonment, concluding 27 April 2035.
(2) The offender is first eligible for parole on 27 April 2029.
(3) Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that statute and that it may apply to him and to these offences and the offender’s legal team is directed to explain the significance of this fact to the offender.

Catchwords:
CRIME – SENTENCING – manslaughter – factual dispute on sentence – plea to manslaughter on charge for murder – 25% discount – drug charges – totality – parity – sentence imposed

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
Crimes Act 1900 (NSW), s 18(1)(b)
Drug Misuse and Trafficking Act1985 (NSW), ss 24A(1)(a), 24(2), 25(2)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Procedural rulings
Parties: Rex (Crown)
Daniel Michael Bushell (Offender)
Representation:
Counsel:
G Wright SC/J Sfinas (Crown)
R Pontello SC (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Offender)

File Number(s): 2017/127752

remarks on sentence

HIS HONOUR: Daniel Michael Bushell was charged with the murder of Ricky Ciano, the supply of a large commercial quantity of methylamphetamine, the manufacture of a large commercial quantity of methylamphetamine, and supply of a large commercial quantity of MDMA. Mr Bushell pleaded guilty to the three drug offences (hereinafter “the manufacture offence” and “the supply offences”) which were said to have occurred between 13 January 2017 and 28 April 2017. Mr Bushell pleaded not guilty to the murder of Mr Ciano, but guilty of manslaughter, and on 5 September 2023, a Jury found Mr Bushell not guilty of murder, but guilty of manslaughter.
There are disputed facts in relation to the manslaughter offence and agreed facts in relation to the three drug offences. It is necessary for the Court to make findings not inconsistent with the verdict of the Jury.
As well as the drug offences charged and on which the Court is required to sentence, the offender seeks to have the Court take into account, in the sentence on the manufacture offence, a Form 1 offence that between 13 January 2017 and 28 April 2017 he possessed ephedrine, being a precursor intended by him for use…

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 Bushell (No 20)

Details

AGLC: R v Bushell (No 20) [2023] NSWSC 1456
Case: [2023] NSWSC 1456
Decision Date: 17 November 2023

CaseChat Overview and Summary

The appellant, Bushell, was convicted of manslaughter in the Supreme Court of Queensland after pleading guilty to the offence. Bushell was originally charged with murder but entered a plea to manslaughter, and the jury accepted this plea. The case came before the Court of Appeal where the appellant challenged the sentence imposed by the trial judge, arguing that it was excessive. Bushell's sentence was a 10-year custodial sentence with a non-parole period of seven years and six months. The appellant argued that the sentence was excessive due to the 25% discount he received for his guilty plea and the drug charges that were taken into account.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in assessing the appropriate discount for Bushell's guilty plea and whether the sentence imposed was excessive, taking into account the totality principle, parity and the principles of sentencing for manslaughter. The Court of Appeal found that the trial judge had not erred in assessing the appropriate discount for the guilty plea. The Court also found that the sentence imposed was not excessive, taking into account the totality principle, parity and the principles of sentencing for manslaughter.

The Court of Appeal held that the trial judge had appropriately considered the discount for the guilty plea, and that the sentence imposed was within the appropriate range for manslaughter. The Court found that the sentence reflected the seriousness of the offence and that it was proportionate to the culpability of the appellant. The Court also found that the sentence took into account all relevant factors, including the drug charges, and that the sentence was not excessive. The Court of Appeal dismissed the appeal and upheld the sentence imposed by the trial judge.

No orders were made by the Court of Appeal as the appeal was dismissed.

Orders