R v JDX; JDX v R - [2017] NSWCCA 9

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v JDX; JDX v R [2017] NSWCCA 9
Hearing dates: 17 November 2016
Decision date: 13 February 2017
Before: Basten JA at [1];
Campbell J at [51];
N Adams J at [116]
Decision:
(1) Grant the offender leave to appeal against the sentences imposed by the District Court on 5 June 2015 for two offences under s 25(2) of the Drug Misuse and Trafficking Act 1985.

(2)   Allow the appeals of the Director of Public Prosecutions and the offender against the sentences.

(3)   Quash the sentences imposed by the District Court and resentence the offender as follows:

(a)   on count 1, impose a fixed term of 6 years imprisonment to commence on 1 February 2014 and expire on 31 January 2020;
(b)   on count 2, impose a sentence of 8 years 4 months imprisonment, involving a non-parole period of 5 years 8 months to commence on 1 August 2014 and expire on 31 March 2020 and a balance of term of 2 years 8 months to commence on 1 April 2020 and expire on 30 November 2022.
(4)   The earliest date on which the applicant will be eligible for conditional release will thus be 31 March 2020.
Catchwords:
CRIMINAL LAW – sentencing – principle of totality – accumulation of sentences – where sentences for supply of drugs accumulated on long sentence for a murder conviction subsequently set aside – whether sentence should be varied once other sentence quashed – whether non-parole period manifestly inadequate when murder sentence removed

CRIMINAL LAW – sentencing – supply of drugs – two offences involving different drugs – relevance of quantity as a factor of prescribed large commercial quantities – proportionality
CRIMINAL LAW – sentencing – resentencing – prospects of rehabilitation – examination of subjective circumstances – weight to be given to expert psychological report – discount to be applied for providing assistance to police authorities
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 32, 33, 44, 59
Criminal Appeal Act 1912 (NSW), ss 5, 5D
Drug Misuse and Trafficking Act 1985 (NSW), s 25; Sch 1
Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Betts v The Queen [2016] HCA 25; 90 ALJR 758
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Kentwell v The Queen (2011) 252 CLR 601; [2014] HCA 37
Kural v R (1987) 162 CLR 502; [1987] HCA 16
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Choi [2010] NSWCCA 318
R v Gallagher (1991) 23 NSWLR 220
R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151
R v Tolmie (1994) 72 A Crim R 416
Thomas v R (1992) 65 A Crim R 269
Category: Principal judgment
Parties:
Regina – Appellant
JDX – Respondent
JDX – Appellant
Regina – Respondent
Representation:
Counsel:

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.

Keep reading for free

Create a free CaseChat account to read R v JDX; JDX v R and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWCCA 9
Decision Date: 13 February 2017

CaseChat Overview and Summary

The case of R v JDX; JDX v R involved a defendant who had been sentenced for drug supply offences, as well as a long sentence for a murder conviction, which was later set aside. The legal issues in this case revolved around the application of the principle of totality in sentencing, the accumulation of sentences, and the proportionality of sentences imposed for drug supply offences involving different drugs. The court was also required to consider the relevance of the quantity of drugs supplied in determining whether they amounted to large commercial quantities, as well as the prospects of the defendant’s rehabilitation.

In its reasoning, the court first addressed the principle of totality, which dictates that the cumulative effect of sentences must be considered to avoid a manifestly inadequate or excessive total sentence. The court found that when the murder sentence was removed, the remaining sentence for drug supply offences became manifestly inadequate. It then considered the proportionality of the sentences imposed for the drug supply offences, noting the relevance of the quantity of drugs supplied and whether they amounted to large commercial quantities. The court concluded that while the quantity was significant, it did not necessarily equate to large commercial quantities given the subjective circumstances of the case.

Further, the court examined the prospects of the defendant’s rehabilitation, giving weight to an expert psychological report which suggested a positive outlook. The court also considered the discount to be applied for the defendant’s assistance to police authorities. Ultimately, the court varied the sentence, taking into account the principle of totality, the proportionality of the sentences, and the defendant's prospects of rehabilitation.

The final orders of the court included a variation of the defendant’s sentence to ensure that it reflected the totality principle and adequately addressed the drug supply offences, while also considering the defendant's prospects of rehabilitation and the discount for assistance to police authorities.

Orders