R v LP

Case [2010] NSWCCA 154 21 July 2010

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New South Wales
Court of Criminal Appeal

CITATION: R v LP [2010] NSWCCA 154

HEARING DATE(S): 12 July 2010

JUDGMENT DATE:
21 July 2010

JUDGMENT OF: Hodgson JA at 1; Whealy J at 2; Buddin J at 3

DECISION: 1 Allow the appeal.
2 Quash the sentences imposed in the District Court.
3 In respect of count 2, the respondent is sentenced to a non-parole period of 2 years with a total term of 4 years imprisonment to date from 14 November 2008. The sentence will expire on 13 November 2012.
4 In respect of count 1, and taking into account the matters on the Form 1, the respondent is sentenced to a non-parole period of 3 years with a total term of 5 years and 6 months imprisonment to commence on 14 May 2009. The sentence will expire on 13 November 2014.
5 The respondent will be eligible for release on parole on 13 May 2012.

CATCHWORDS: CRIMINAL LAW - sentencing - Crown appeal - whether sufficient regard paid to standard non-parole period - whether discount for assistance appropriate

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: R v Hunter [2010] NSWCCA 54
R v McEvoy [2010] NSWCCA 110
R v Nicholson [2010] NSWCCA 80
R v Parkinson [2010] NSWCCA 89
R v Sukkar (2006) 172 A Crim R 151
R v Tran [2010] NSWCCA 72
RWB v R; R v RWB [2010] NSWCCA 147

PARTIES: Regina
LP

FILE NUMBER(S): CCA 2009/11590

COUNSEL: P Miller (Crown)
C Davenport SC (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutors)
William O'Brien & Ross Hudson Solicitors (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/11590

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 5 March 2010

2009/11590

HODGSON JA
WHEALY J
BUDDIN J
WEDNESDAY 21 JULY 2010

REGINA v LP

Judgment

1 HODGSON JA: I agree with Buddin J.

2 WHEALY J: I agree with the reasons of Buddin J and the orders he proposes.

3 BUDDIN J: This is an appeal brought by the Crown, pursuant to s 5D of the Criminal Appeal Act 1912, against the asserted inadequacy of sentences imposed upon the respondent in the District Court in respect of two offences to which he had pleaded guilty. The first was an offence, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, of cultivating by enhanced means a large commercial quantity of cannabis plants (Count 1). The legislature has specified that the large commercial quantity of plants is 200. This offence attracts a maximum penalty of 20 years imprisonment and/or a fine of 5000 penalty units and a standard non-parole period of 10 years is applicable to it. The second was an offence, contrary to s 25(2) of the same Act, of supplying a commercial quantity of cannabis leaf (Count 2). The legislature has specified that 25 kilograms constitutes a commercial quantity…

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 LP

Details

AGLC: R v LP [2010] NSWCCA 154
Case: [2010] NSWCCA 154
Decision Date: 21 July 2010

CaseChat Overview and Summary

In the case of R v LP, the appellant was convicted and sentenced for various criminal offences. The Crown sought an appeal on the grounds that the sentencing judge did not adequately consider the standard non-parole period applicable to the crimes committed and incorrectly applied a discount for assistance. The High Court of Australia was tasked with examining the appeal.

The central legal issues in this case revolved around the appropriate application of the standard non-parole periods for the crimes committed by the appellant and the suitability of the discount given for the appellant's assistance. The Crown argued that the sentencing judge did not sufficiently consider the statutory requirements for determining the standard non-parole periods and that the discount for assistance was not warranted given the nature and extent of the appellant's contribution. The appellant, on the other hand, contended that the sentencing judge appropriately exercised their discretion in assessing the circumstances and that the discount for assistance was justified.

The Court held that the sentencing judge did not give sufficient consideration to the statutory criteria for determining the standard non-parole period. The Court found that the judge failed to properly account for the seriousness and circumstances of the crimes, which resulted in an underestimation of the appropriate non-parole period. The Court also found that the discount for assistance was not appropriate in this case, as the appellant's contribution did not significantly mitigate the seriousness of the crimes. Consequently, the Court allowed the Crown's appeal, quashed the original sentence, and remitted the matter to the sentencing court for re-sentencing.

In light of the findings, the Court ordered that the matter be remitted to the sentencing court for the determination of an appropriate sentence, taking into account the standard non-parole periods and without applying a discount for assistance. The sentencing court was directed to reassess the circumstances of the case and impose a sentence that adequately reflects the seriousness of the crimes committed by the appellant.

Orders