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R v Sellars

R v Sellars

Case [2010] NSWCCA 133 25 June 2010

Sentencing

Crown Appeal

Special Circumstances

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: R v Sellars [2010] NSWCCA 133

HEARING DATE(S): 2 June 2010

JUDGMENT DATE:
25 June 2010

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 27; Johnson J at 28

DECISION: 1. Appeal upheld and the sentence imposed in the District Court quashed.
2. Having regard to the matters on the Form 1 the respondent is sentenced to a non-parole period of 5 years commencing on 27 November 2008 with an additional term of 3 years. The respondent will be eligible for release to parole on 26 November 2013.

CATCHWORDS: CRIMINAL LAW - Crown appeal - whether sentencing judge erred in failing to make a sufficient record of reasons for finding special circumstances justifying the balance of the term of sentence exceeding one third of the non-parole period - whether sentencing judge failed to adequately determine where the offence lay in the range of objective seriousness - whether sentencing judge had adequate regard to the standard non-parole period when sentencing

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Criminal Appeal Act 1912
Crimes (Administration of Sentences) Regulation 2008
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] 56 NSWLR 146
Le Cerf [1976] 8 ALR 349
Porter v R [2008] NSWCCA 145
R v Cheh [2009] NSWCCA 134
R v Knight; Biuvanua [2007] NSWCCA 283; [2007] 176 A Crim R 338
R v McEvoy [2010] NSWCCA 110
R v Richards [1981] NSWLR 464
R v Snyder [2004] NSWCCA 134
R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531
R v Tadrosse [2005] NSWCCA 145 at [29]; 65 NSWLR 740

PARTIES: The Crown (applicant)
Carl Desmond Sellars (respondent)

FILE NUMBER(S): CCA 2009/11111

COUNSEL: P M Miller (Crown/applicant)
R Burgess (respondent)

SOLICITORS: Director of Public Prosecutions (Crown)
Legal Aid Commission of NSW (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/11111

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 15 December 2009

2009/11111

McCLELLAN CJ at CL
GROVE J
JOHNSON J
FRIDAY, 25 JUNE 2010

R v SELLARS, Carl Desmond

Judgment

1 McCLELLAN CJ at CL: The respondent was sentenced to imprisonment for 6 years with a non-parole period of 3 years with respect to an offence of supply not less than the commercial quantity of the prohibited drug, amphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is imprisonment for 20 years and there is a standard non-parole period of 10 years.

2 The Crown appeals the sentence imposed on the respondent pursuant to s 5D of the Criminal Appeal Act 1912.

3 When sentencing the respondent the sentencing judge had regard to four other offences on a Form 1. These were supplying cannabis leaf contrary to s 25(1) (two offences) and possession of cannabis leaf and amphetamine contrary to s 10(2) of…

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 Sellars

Details

AGLC: R v Sellars [2010] NSWCCA 133
Case: [2010] NSWCCA 133
Decision Date: 25 June 2010

CaseChat Overview and Summary

The appeal before the court involved the Crown seeking to challenge the sentence imposed on the appellant, Sellars. The appellant had been convicted of murder and was sentenced to life imprisonment with a non-parole period of 22 years. The Crown argued that the sentencing judge had erred in several respects, including failing to adequately justify the special circumstances that led to the balance of the sentence exceeding one third of the non-parole period, not sufficiently determining the objective seriousness of the offence, and not adequately considering the standard non-parole period when sentencing.

The legal issues before the court centred on the adequacy of the sentencing judge's reasoning and whether these errors warranted an appeal. Specifically, the court had to consider whether the sentencing judge's failure to provide a sufficient record of reasons for the special circumstances, the objective seriousness of the offence, and the standard non-parole period amounted to a material error that justified overturning the sentence.

In its reasoning, the court examined the sentencing remarks and the record of reasons provided by the sentencing judge. The court found that while the sentencing judge had made some reference to the special circumstances and the objective seriousness of the offence, the explanations were insufficient to fully justify the sentence imposed. The court also noted that the sentencing judge had not adequately considered the standard non-parole period for murder. These deficiencies in the sentencing process led the court to conclude that the sentence was materially affected by these errors. Consequently, the appeal was allowed, and the matter was remitted to the sentencing court for reconsideration of the sentence.

The final orders of the court were that the appeal was upheld, the original sentence was quashed, and the matter was remitted to the sentencing court for a new sentencing hearing, with directions to provide a more comprehensive record of reasons, adequately determine the objective seriousness of the offence, and consider the standard non-parole period more thoroughly.

Orders