R v Leslie, Michael - [2017] NSWDC 381

District Court

New South Wales

Medium Neutral Citation: R v LESLIE, Michael [2017] NSWDC 381
Hearing dates: 20 October 2017
Date of orders: 27 October 2017
Decision date: 27 October 2017
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full-time custodial sentence. For orders see [54]

Catchwords: CRIMINAL – SENTENCE – supply prohibited drug – 70.73 grams of methylamphetamine – subject to two good behaviour bonds from the Adelaide Magistrate’s Court at the time of the offence – three offenders involved in transporting the prohibited drugs from Adelaide and apprehended in Broken Hill – role of the offender – obtained the drugs from someone else – drove the car from Adelaide and booked the accommodation in Broken Hill in his name – no evidence of what profit the offender stood to gain – diagnosed with ADHD as a child – user of prohibited drugs – character of offence was no consistent with a “user dealer” situation – ‘special circumstances’ found – the offender has never previously been in custody
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Robertson v R [2017] NSWCCA 205
R v Gu [2006] NSWCCA 104
R v Gip (2006) 161 A Crim R 173
R v Fayd’herbe [2007] NSWCCA 20
R v Carrion (2000) 49 NSWLR 149
R v Clark (NSWCCA, 15 March 1990, unreported)
R v Bardo (NSWCCA, 14 July 1992, unreported)
R v Ozer (NSWCCA, 9 November 1993, unreported)
Category: Sentence
Parties: Regina (Crown)
Michael Leslie (Offender)
Representation: Counsel:
Mr. Bullard (Counsel)
Mr. Watts (Counsel)

File Number(s): 2016/000242083
Publication restriction: Nil

SENTENCE

HIS HONOUR: Michael Leslie appears today for sentence in relation to a charge for which he was found guilty by a jury in Broken Hill that alleged that he on 27 May 2016 at Broken Hill in the State of New South Wales, did supply a prohibited drug, namely methylamphetamine.
The trial at Broken Hill commenced on 29 August 2017 and a guilty verdict was returned by the jury on 1 September 2017.
The offence for which he was tried carries a maximum penalty of 15 years imprisonment. The offender did not give evidence at the trial.
The case was conducted as one of “deemed” supply in that the Crown alleged against the offender that he and others possessed and/or jointly possessed a quantity of methylamphetamine that exceeded the trafficable quantities and indictable quantities for that particular prohibited drug. In New South Wales a trafficable quantity of methylamphetamine is 3 grams, an indictable quantity is 5 grams. A commercial quantity of that particular drug, attracting thus a greater maximum penalty, is .25 kilograms or 250 grams. The total quantity alleged to be in the possession of the offender, or jointly possessed by him with others, was 70.73 grams. On the basis of the verdict of the jury I must sentence the offender on facts consistent with the verdict. The evidence satisfies me relevantly that the offender travelled with two…

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 Leslie, Michael

Details

AGLC: R v Leslie, Michael [2017] NSWDC 381
Case: [2017] NSWDC 381
Decision Date: 27 October 2017

CaseChat Overview and Summary

The appeal was against a sentence imposed on Michael Leslie for his involvement in the supply of a prohibited drug. The court was tasked with determining whether the sentence was appropriate given the circumstances of the offence and the offender's background. Leslie was found with 70.73 grams of methylamphetamine and was one of three individuals involved in transporting the drugs from Adelaide to Broken Hill, where they were apprehended. Leslie had obtained the drugs from another person, driven the car from Adelaide, and booked the accommodation in Broken Hill in his own name. There was no evidence of the profit Leslie stood to gain from the offence.

The legal issues before the court were the appropriateness of the sentence and whether the sentencing judge had adequately considered the offender's role, background, and the special circumstances. The court considered Leslie's role as a driver and accommodation booker, his lack of prior criminal history, his diagnosis of ADHD as a child, and his status as a user of prohibited drugs. The court found that Leslie's character was not consistent with a "user dealer" situation, indicating a lower level of culpability. Additionally, the court noted that Leslie had never previously been in custody, which was a mitigating factor.

The court concluded that the sentence imposed was too severe, given the offender's role and background. The court found that there were special circumstances that warranted a reduction in sentence. The appeal was allowed, and a full-time custodial sentence was substituted for the original sentence. The court ordered that Leslie be remanded in custody pending the imposition of the new sentence.

Orders

Orders of the court

Full-time custodial sentence. For orders see [54]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v LESLIE, Michael [2017] NSWDC 381
Hearing dates:	20 October 2017
Date of orders:	27 October 2017
Decision date:	27 October 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [54]
Catchwords:	CRIMINAL – SENTENCE – supply prohibited drug – 70.73 grams of methylamphetamine – subject to two good behaviour bonds from the Adelaide Magistrate’s Court at the time of the offence – three offenders involved in transporting the prohibited drugs from Adelaide and apprehended in Broken Hill – role of the offender – obtained the drugs from someone else – drove the car from Adelaide and booked the accommodation in Broken Hill in his name – no evidence of what profit the offender stood to gain – diagnosed with ADHD as a child – user of prohibited drugs – character of offence was no consistent with a “user dealer” situation – ‘special circumstances’ found – the offender has never previously been in custody
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Robertson v R [2017] NSWCCA 205 R v Gu [2006] NSWCCA 104 R v Gip (2006) 161 A Crim R 173 R v Fayd’herbe [2007] NSWCCA 20 R v Carrion (2000) 49 NSWLR 149 R v Clark (NSWCCA, 15 March 1990, unreported) R v Bardo (NSWCCA, 14 July 1992, unreported) R v Ozer (NSWCCA, 9 November 1993, unreported)
Category:	Sentence
Parties:	Regina (Crown) Michael Leslie (Offender)
Representation:	Counsel: Mr. Bullard (Counsel) Mr. Watts (Counsel)
File Number(s):	2016/000242083
Publication restriction:	Nil