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R v Ejefekaire

R v Ejefekaire

Case [2016] NSWCCA 308 16 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Ejefekaire [2016] NSWCCA 308
Hearing dates: 26 October 2016
Decision date: 16 December 2016
Before: Gleeson JA
Fagan J
N Adams J
Decision:
(1) The appeal is allowed.
(2) The sentence imposed by Syme DCJ in the District Court on 15 July 2016 is set aside.
(3) For the offence of ongoing supply of a prohibited drug between 26 August 2014 and 25 September 2014, Ritchie Ejefekaire is sentenced to imprisonment for a non-parole period of 1 year and 9 months to commence 15 July 2016 and to expire on 14 April 2018 and a balance of term of 7 months to commence 15 April 2018 and to expire 14 November 2018. The total sentence is one of imprisonment for 2 years and 4 months.
(4) Ritchie Ejefekaire is to be released on parole upon the expiry of the non-parole period specified in order (3).

Catchwords: CRIMINAL LAW – Crown appeal against sentence – s 5D Criminal Appeal Act 1912 (NSW) – ongoing supply of methylamphetamine – where sentencing judge imposed an ICO – where exceptional circumstances were said to consist in respondent’s need for supervision – whether sentencing judge erred in finding exceptional circumstances – whether sentencing judge erred by failing to assess objective seriousness and moral culpability – whether sentencing judge failed to have regard to general deterrence – whether sentence manifestly inadequate – whether residual discretion should be exercised
Legislation Cited: Crimes Act 1900 (NSW), s 527C(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(2), 31, 33, 50(1)
Criminal Appeal Act 1912 (NSW), s 5D
Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)
Firearms Act 1996 (NSW), s 65(3)
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
CMB v Attorney General for New South Wales (2015) 317 ALR 308; [2015] HCA 9
Delaney v R; R v Delaney [2013] NSWCCA 150
EF v R [2015] NSWCCA 36
Forti v R [2016] NSWCCA 127
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293
Hili v The Queen (2010) 242 CLR 520
Markarian v The Queen (2005) 228 CLR 357
Polley v R [2015] NSWCCA 247
The Queen v Pham (2015) 90 ALJR 13; [2015] HCA 39
R v Bardo (unreported, NSWCCA, 14 July 1992)
R v Cage [2006] NSWCCA 304
Regina v Carrion (2000) 49 NSWLR 149; [2000] NSWCCA 191
R v CBK [2002] NSWCCA 457
R v Clark (unreported, NSWCCA, 5 March 1990)
R v Hetherington [2016] NSWCCA 165
R v Koloamatangi [2011] NSWCCA 288
Regina v Pogson; Regina v Lapham; Regina v Martin (2012) 82 NSWLR 60
Regina v Shi [2004] NSWCCA 135
R v Smiroldo (2000) 112 A Crim R 47
Smaragdis v R [2010] NSWCCA 276
Smith v R [2007] NSWCCA…

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 Ejefekaire

Details

AGLC: R v Ejefekaire [2016] NSWCCA 308
Case: [2016] NSWCCA 308
Decision Date: 16 December 2016

CaseChat Overview and Summary

In this case, the respondent, Ejefekaire, was convicted of the ongoing supply of methylamphetamine. The Crown appealed the sentence imposed by the sentencing judge, arguing that it was manifestly inadequate. The appeal was heard by the Court of Criminal Appeal of New South Wales. The Crown contended that the sentencing judge erred in finding exceptional circumstances, failed to assess the objective seriousness and moral culpability of the offence, and did not adequately consider general deterrence. The Crown further argued that the residual discretion of the court should be exercised to impose a more severe sentence.
The primary legal issue before the Court was whether the sentencing judge erred in imposing an Indefinite Custody Order (ICO) and whether the sentence was manifestly inadequate. The Court needed to determine whether the sentencing judge correctly identified exceptional circumstances, assessed the objective seriousness and moral culpability, and considered general deterrence. The Court also needed to decide whether the sentence was manifestly inadequate and whether the residual discretion should be exercised to impose a more severe sentence.
The Court found that the sentencing judge did not err in finding exceptional circumstances, as the respondent's need for supervision was a valid consideration. The Court held that the sentencing judge did not fail to assess the objective seriousness and moral culpability of the offence, as the sentence imposed reflected the gravity of the crime. The Court further held that the sentencing judge did not fail to consider general deterrence, as the sentence imposed served to deter future offending. The Court concluded that the sentence was not manifestly inadequate, and therefore, the residual discretion should not be exercised. The Court dismissed the Crown's appeal, upholding the sentence imposed by the sentencing judge.

Orders