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R v Campbell; R v Smith

R v Campbell; R v Smith

Case [2019] NSWCCA 1 1 February 2019

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Campbell; R v Smith [2019] NSWCCA 1
Hearing dates: 23 November 2018
Decision date: 01 February 2019
Before: Beazley P at [1];
Rothman J at [2];
R A Hulme J at [24]
Decision:
I propose the following orders in respect of Simon Vincent Campbell:
1. Crown appeal against sentence allowed.
2. Aggregate sentence imposed in the District Court on 8 June 2015 quashed.
3. The respondent is sentenced to an aggregate term of imprisonment for 11 years with a non-parole period of 7 years. The sentence is to date from 29 April 2015 and the respondent will become eligible for release on parole when the non-parole period expires on 28 April 2022.
I propose the following orders in respect of Sean Anthony Smith:
1. Crown appeal against sentence allowed.
2. Aggregate sentence imposed in the District Court on 8 June 2015 quashed.
3. The respondent is sentenced to an aggregate term of imprisonment for 16 years with a non-parole period of 10 years 6 months. The sentence is to date from 29 April 2015 and the respondent will become eligible for release on parole when the non-parole period expires on 28 October 2025.
Catchwords: SENTENCING — Crown appeal against inadequacy of sentence – offences related to manufacture of methylamphetamine – firearms offences – assessment of objective seriousness of offences not disputed – inadequacy of indicative sentences imposed – effect of distinct criminality in drug supply and precursor offences on notional accumulation of sentences – comparison of indicative sentences relevant to assessment of whether aggregate sentences are proportionate to totality of criminality – purposes of sentencing in drug manufacturing offences – s 33 Crimes (Sentencing Procedure) Act 1999 (NSW) – taking account of offences listed on Form 1 document in sentencing – effect of delay on Court’s discretion to intervene
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 68A
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW s 3A
Drugs Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW) ss 7(1), 51D2
Weapons Prohibition Act 1998 (NSW)
Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure Act 1999, No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DL (No 2) v The Queen (2018) 358 ALR 666; [2018] HCA 32
El Jamal v R [2017] NSWCCA 243
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
Farrah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jeffree v R [2017] NSWCCA 72
JM v R

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 Campbell; R v Smith

Details

AGLC: R v Campbell; R v Smith [2019] NSWCCA 1
Case: [2019] NSWCCA 1
Decision Date: 01 February 2019

CaseChat Overview and Summary

The case of R v Campbell and R v Smith involved an appeal by the Crown against the sentences imposed on the two defendants, who were convicted for their involvement in the manufacture of methylamphetamine and related firearms offences. The case was heard in the Court of Criminal Appeal in New South Wales, which was tasked with determining whether the sentences imposed by the trial judge were inadequate in light of the gravity of the crimes committed.

The legal issues before the court included whether the sentences imposed were proportionate to the totality of the defendants' criminality, and whether the trial judge had adequately considered the notional accumulation of sentences for the various offences. Specifically, the court needed to assess whether the sentences for the drug supply and precursor offences should be considered separately and cumulatively, and whether the aggregate sentences were proportionate to the totality of the criminality. The court also needed to consider the purposes of sentencing in drug manufacturing offences and the effect of delay on the court's discretion to intervene.

The Court of Criminal Appeal found that the trial judge had not adequately considered the notional accumulation of sentences for the drug supply and precursor offences, which were distinct but related to the same criminal enterprise. The court held that the aggregate sentences imposed were inadequate in light of the objective seriousness of the offences. The court also found that the trial judge had not properly taken into account the offences listed on the Form 1 document, which detailed the various charges against the defendants. The Court of Criminal Appeal concluded that the sentences imposed were manifestly inadequate and ordered that the defendants be re-sentenced.

In conclusion, the Court of Criminal Appeal allowed the Crown's appeal and ordered that the defendants be re-sentenced, taking into account the totality of their criminality and the purposes of sentencing in drug manufacturing offences. The court emphasised the importance of considering the notional accumulation of sentences for distinct but related offences, and the need to ensure that sentences are proportionate to the gravity of the crimes committed.

Orders