R v Lowe, Cole Andrew - [2016] NSWDC 386

District Court

New South Wales

Medium Neutral Citation: R v LOWE, Cole Andrew [2016] NSWDC 386
Hearing dates: 11 February 2016
Date of orders: 11 February 2016
Decision date: 11 February 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full-time custodial sentence. For orders see [75]

Catchwords: CRIMINAL – supply prohibited drug – methylamphetamine – methorphan – multiple Form 1 offences – SENTENCE – early plea of guilty – evidence from the offender – attempts at rehabilitation – quasi custody benefit – connection between offender’s mental health and offending
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)
Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194
Fayd’herbe v R [2007] NSWCCA 20
Pearce v R (1998) 194 CLR 610
Polley v R [2015] NSWCCA 247
R v Blackman and Walters [2001] NSWCCA 121
R v Carrion [2000] NSWCCA 191
R v Gipp [2006] NSWCCA 115
R v Gu [2006] NSWCCA 104
Veen v The Queen (No.2) [1988] HCA 14
Category: Sentence
Parties: Regina (Crown)
Cole Andrew Lowe (Defendant)
Representation: Counsel:
Mr. Meredith (Crown)
Mr. Barron (Defendant)

File Number(s): 2014/274292
Publication restriction: Nil

sentence

HIS HONOUR: Mr Lowe, the reason I cannot grant your counsel's application is going to become very obvious to you because of the character of the sentence I must impose. The time has come for sentencing and to my mind to delay the matter would only make more cruel the barb that follows from the sentence I propose to impose upon you. I propose to sentence you to five years imprisonment and I propose to fix a non-parole period of two and a half years in effect. That sentence is going to be backdated six months, so I am going to give you all the credit for the time you have previously spent in custody and I am going to give you additional credit beyond 50% of the quasi custodial setting of the rehabilitation centre. I am going to explain to you and your family particularly but also the community why it must be the case that you must be sentenced to a term of imprisonment and why it must be greater than the two years or less that your counsel was seeking.
The prisoner, Cole Andrew Lowe appears today for sentence in relation to three offences for which he was committed for sentence from the Local Court. It is important that I outline the particulars of the crimes. Those crimes each being crimes contrary to s 25(1) of the Drug Misuse and Trafficking Act, which each carry a maximum penalty of 15 years imprisonment and/or 2,000 penalty units. A penalty unit is I understand the matter being $110 each. In respect of each offence there isno standard non-parole period. The particulars of the three crimes are these; I will refer to them by sequence number because that is the way they are referred to in the Court Attendance Notices and the Crown Cover Sheet.
Sequence…

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 Lowe, Cole Andrew

Details

AGLC: R v Lowe, Cole Andrew [2016] NSWDC 386
Case: [2016] NSWDC 386
Decision Date: 11 February 2016

CaseChat Overview and Summary

The case involved the defendant, Cole Andrew Lowe, who was charged with multiple offences related to the supply of a prohibited drug, specifically methylamphetamine, commonly known as methorphan. The court heard the matter in the Supreme Court of New South Wales. The defendant pleaded guilty to all charges at an early stage of the proceedings. The defence presented evidence aimed to highlight the defendant's attempts at rehabilitation and the influence of his mental health on his offending behaviour.

The primary legal issues before the court were the appropriate sentencing for the defendant's multiple offences and the consideration of mitigating factors such as the defendant's early guilty plea, efforts at rehabilitation, and the connection between his mental health and his criminal activities. The court had to balance these mitigating factors against the seriousness of the offences, which involved the supply of a dangerous and prohibited substance.

The court found that while the defendant's early guilty plea and efforts at rehabilitation were mitigating factors, they were not sufficient to outweigh the gravity of the offences. The court also considered the impact of the defendant's mental health on his offending but concluded that it did not excuse his actions. The court ultimately decided that a full-time custodial sentence was necessary to adequately address the offences and to protect the community. The court made specific orders regarding the sentence, which were detailed in the judgement.

Orders

Orders of the court

Full-time custodial sentence. For orders see [75]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v LOWE, Cole Andrew [2016] NSWDC 386
Hearing dates:	11 February 2016
Date of orders:	11 February 2016
Decision date:	11 February 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [75]
Catchwords:	CRIMINAL – supply prohibited drug – methylamphetamine – methorphan – multiple Form 1 offences – SENTENCE – early plea of guilty – evidence from the offender – attempts at rehabilitation – quasi custody benefit – connection between offender’s mental health and offending
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Drugs Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 Fayd’herbe v R [2007] NSWCCA 20 Pearce v R (1998) 194 CLR 610 Polley v R [2015] NSWCCA 247 R v Blackman and Walters [2001] NSWCCA 121 R v Carrion [2000] NSWCCA 191 R v Gipp [2006] NSWCCA 115 R v Gu [2006] NSWCCA 104 Veen v The Queen (No.2) [1988] HCA 14
Category:	Sentence
Parties:	Regina (Crown) Cole Andrew Lowe (Defendant)
Representation:	Counsel: Mr. Meredith (Crown) Mr. Barron (Defendant)
File Number(s):	2014/274292
Publication restriction:	Nil