R v David Sydney Lowe - [2009] NSWDC 303

CITATION: R v David Sydney Lowe [2009] NSWDC 303

HEARING DATE(S): 23 October 2009

JUDGMENT OF: Conlon SC DCJ

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Weapons Prohibition Act 1998
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Hoon and R v Pouoa [2000] NSWCCA 137
R v Smiroldo (2000) 112 ACrimR 47
R v Cheikh and Hoete (2004) NSWCCA 448
R v Knight and R v Biuvanua (2007) NSWCCA 283
R v Bavadra (2000) 115 A Crim R 152
Pearce v R (1998) 194 CLR 160
R v Qatami [2001] NSWCCA 353

PARTIES: Regina
David Sydney Lowe

COUNSEL:

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JUDGMENT

1 HIS HONOUR: The offender David Lowe appears for sentence in respect of a number of charges. He pleaded guilty in the local court on 25 February 2009 to a charge of ongoing supply of prohibited drug (namely, methylamphetamine) contrary to s 25A of the Drug Misuse and Trafficking Act and also a charge of supplying a prohibited drug (namely, methylamphetamine) not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act. Each charge carries a maximum penalty of twenty years imprisonment.

2 On 22 May 2009 at Campbelltown District Court he pleaded guilty to the following five counts on an indictment.

“1. Supply a prohibited drug (479.6 grams of methylamphetamine) being not less than the commercial quantity - s 25(2) maximum penalty twenty years imprisonment.

2. Cultivate a prohibited plant by enhanced indoor means for a commercial purpose - s 23(1A) maximum penalty fifteen years imprisonment.

3. Possess unauthorised firearm- contrary to s 7(1) of the Firearms Act carrying a maximum penalty of fourteen years imprisonment.

4. Possess unregistered firearm - s 36 Firearms Act maximum penalty five years imprisonment.
5. Possess prohibited weapon without permit - s 7(1) Weapons Prohibition Act . Maximum penalty fourteen years imprisonment.”

3 When sentencing in respect of count five on the indictment the offender has requested that a further eight(8) firearms/ammunition offences be taken into account on a Form 1, (see exhibit B). When sentencing in respect of the charge of ongoing supply the offender has requested that two (2) further offences be taken into account on a Form 1 (see exhibit C).

4 The Crown bundle of documents is exhibit A and it contains an agreed statement of facts that was signed by the offender on 22 May 2009. Those facts are poorly drafted and with the assistance of the Crown I have made written notations on one copy of the agreed facts so as to assist me in understanding what evidence relates to each charge.

5 The following is my summary of those agreed facts.

6 Ongoing supply (methylamphetamine) - s 25A.

7 In May 2008 Operation Fiesta was formed to investigate the supply of methylamphetamine in the Minto and Claymore area. As part of this a controlled operation was authorised on 5 June 2008.

8 On 12 June 2008 a police undercover…

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 David Sydney Lowe

Details

AGLC: R v David Sydney Lowe [2009] NSWDC 303
Case: [2009] NSWDC 303
Decision Date: 23 October 2009

CaseChat Overview and Summary

David Sydney Lowe has pleaded guilty to multiple drug and firearm related charges, and the matter was heard in the District Court of New South Wales. The primary legal issues involved assessing the objective seriousness of the offences, considering the subjective circumstances of Lowe's background, and determining an appropriate sentence that reflects the totality of his criminal conduct. The court assessed the objective seriousness of each offence, considering the quantities of drugs involved, the organisation of the criminal activities, and the planning and preparation undertaken by Lowe. The court found the objective seriousness of the offences to be above mid-range for the ongoing supply of prohibited drugs, and mid to above mid-range for the other drug and firearm related charges. The subjective circumstances considered included Lowe's background, family situation, employment history, and his involvement with the Rebels Outlaws motorcycle gang. While Lowe provided reasons for his criminal conduct, the court gave little weight to these assertions.

The court determined the appropriate sentence by considering the purposes of sentencing, the standard non-parole periods, and the need to reflect the totality of Lowe's criminal conduct. The court imposed concurrent or consecutive sentences for the various charges, taking into account the guilty pleas and the additional charges disclosed on Forms 1. The final orders imposed a total effective sentence of fourteen years imprisonment, with a non-parole period of ten years. The sentences were backdated to the date of Lowe's arrest, 4 July 2008.

Orders