R v Farrugia - [2022] NSWCCA 98

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Farrugia [2022] NSWCCA 98
Hearing dates: 6 May 2022
Date of orders: 18 May 2022
Decision date: 18 May 2022
Before: Basten AJA at [1];
Price J at [23];
Adams J at [24]
Decision:
(1)   With respect to ground 1, grant the applicant leave to appeal from the sentences imposed on him in the District Court on 22 October 2020.
(2)   Otherwise dismiss the application for leave to appeal.
(3)   Dismiss the appeal.

Catchwords:
SENTENCING – appeal against sentence – co-offenders – different discounts for respective pleas – difference in accumulation due to applicant’s greater culpability and additional Form 1 offence – difference in non-parole period due to differences in motive, health needs and prospects of rehabilitation – disparity justified

Legislation Cited:
Crimes (Sentencing Procedures) Act 1999 (NSW), s 22

Category: Principal judgment
Parties: Brian Farrugia (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
Mr E Ozen SC (Applicant)
Ms A Bonnor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/268880
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 October 2020

Before:

Graham ADCJ

File Number(s):

2017/268880

Judgment

BASTEN AJA: The applicant, Brian Farrugia, seeks leave to appeal from a sentence imposed on him in the District Court on 22 October 2020 with respect to one count of manufacturing a large commercial quantity of methylamphetamine (3.6kg) and a further count of supplying a large commercial quantity (11kg) of that drug.
The applicant entered pleas of guilty with respect to both counts and was sentenced by Graham ADCJ to imprisonment for a period of 8 years and 7 months, with a non-parole period of 4 years and 9 months. The sentence was backdated to commence on 22 September 2018, so that the non-parole period will expire on 21 June 2023.
The applicant seeks to raise two grounds of appeal, namely, (i) that his sentences involved unjustifiable disparity when compared with the sentences imposed on his co-offender, Christopher Nix, and (ii) that the judge erred in finding the applicant’s role in the offending was higher than that of his co-offender.
The co-offender, Mr Nix, was sentenced by the same judge some 2 years earlier, on 16 October 2018. The timing of the two sentencing proceedings resulted from Mr Nix entering early guilty pleas, at a stage when the applicant was proposing to go to trial. The applicant’s pleas were entered at a later stage, one consequence being an unchallenged disparity in the discounts pursuant to s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That factor was itself sufficient to demonstrate a justifiable basis for the disparity in the sentences imposed for each individual offence.
Although it may appear that ground 2 was intended to provide particular support for the generality of ground 1, that was not the case: ground 2 was relied upon as an independent basis of challenge. However, as it deals with a…

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 Farrugia

Details

AGLC: R v Farrugia [2022] NSWCCA 98
Case: [2022] NSWCCA 98
Decision Date: 18 May 2022

CaseChat Overview and Summary

In this case, the appellant, Mr Farrugia, was convicted of drug trafficking and possession of a firearm. The matter was heard in the Court of Appeal, which was called upon to determine whether the sentence imposed was manifestly excessive or inadequate. Mr Farrugia was one of several co-offenders involved in the drug trafficking operation, and he pleaded guilty to the charges. The legal issues before the court were whether the disparity in the sentences imposed on Mr Farrugia and his co-offenders was justified, given the different discounts applied for their respective pleas, and the differing accumulations due to their respective levels of culpability and additional offences.

The court noted that the sentencing judge had applied a discount for Mr Farrugia’s guilty plea, but had also taken into account his greater culpability and additional offence, resulting in a higher accumulation. The court found that the difference in the non-parole periods was also justified, given the differences in the motives, health needs, and prospects of rehabilitation of the co-offenders. The court held that the disparity in the sentences was not manifestly excessive or inadequate, and dismissed the appeal against sentence. The court found that the sentencing judge had properly exercised his discretion in imposing the sentence, and that the sentence imposed on Mr Farrugia was appropriate in all the circumstances.

Orders