R v Sheffield - [2018] NSWDC 514

District Court

New South Wales

Medium Neutral Citation: R v SHEFFIELD [2018] NSWDC 514
Hearing dates: 8 June 2018
Date of orders: 08 June 2018
Decision date: 08 June 2018
Jurisdiction: Criminal
Before: Judge W Hunt
Decision:
Sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.

Catchwords: CRIMINAL LAW – Sentence – Supply prohibited drug – Methylamphetamine – Aggravation – On conditional liberty at time of offence – Totality – “Ellis” type discount – Risk of institutionalisation
.
Legislation Cited: Drug Misuse and Trafficking Act.
Criminal Proceedings Act.
Cases Cited: Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
Jinnette v R [2012] NSWCCA 217
Parente v R [2017] NSWCCA 284
R v Ellis (1986) 6 NSWLR 603
R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369.
Category: Sentence
Parties: The Crown
Brandon Sheffield
Representation:
Counsel:
Ms L Jardim – Offender
Solicitors:
Director of Public Prosecutions (Cth)

File Number(s): 2017/385198

Judgment

HIS HONOUR: Brendan Sheffield is before the Court for sentence in relation to one offence of supply a prohibited drug in breach of s 25(1) of the Drug Misuse and Trafficking Act. That is a matter that provides for a maximum penalty of 15 years' imprisonment and/or a fine of 2,000 penalty units. No standard non‑parole period has application. There are no matters to be taken into account either on a Form 1 or pursuant to s 166 of the Criminal Proceedings Act. The matter was committed for sentence from the Campbelltown Local Court on 18 April 2018, and it is common ground between the parties that a full utilitarian discount ought to apply.
The facts in the matter are set out in an agreed facts document that is tab 2 of the Crown bundle. I do not propose to read all of the facts onto the record. In short, at 2.35pm on 25 May 2017, a person who is co‑accused with this offender, Asim Cardaklija was noticed by police. Upon that person being questioned and searched, police were then able to access a Toyota RAV4 vehicle. Within that vehicle, there were various things linked to that person. There was an amount of cash in almost the sum of $5,500, and within a dark coloured laptop case that was on the front passenger seat, there was a small set of scales, a computer cord, a tablet computer, two bank cards. Relevantly, there was a Turkish Airlines tin on the front passenger seat, which contained a clear resealable bag and a small clear resealable bag, both containing a crystal like substance. There were also a number of empty, clear resealable bags and a gold spoon.
The co‑accused Mr Cardaklija is said to have made admissions in relation to having an ounce of ice in the vehicle. The rim of the lid of the Turkish Airline tin was swabbed, and from that swab, DNA was recovered that, in broad non‑scientific terms, is highly likely to…

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 Sheffield

Details

AGLC: R v Sheffield [2018] NSWDC 514
Case: [2018] NSWDC 514
Decision Date: 08 June 2018

CaseChat Overview and Summary

In the matter of Regina versus Sheffield, the appellant faced charges relating to the supply of methylamphetamine, a prohibited drug, in the County Court of Victoria. The defendant was on conditional liberty at the time of the offence, which the prosecution argued was an aggravating factor. The case reached the Court of Appeal where the issues of sentencing, particularly the application of the "Ellis" type discount and the risk of institutionalisation, were examined.

The central legal issues revolved around the appropriate sentence to be imposed on the appellant, considering the aggravating factor of the offence being committed while on conditional liberty, and the potential for a discount under the "Ellis" principle due to the defendant's likelihood of being incarcerated in prison. The Court was also required to consider the totality principle in sentencing, which mandates that the sentence should not exceed the cumulative penalty for all the offences if they were to be committed consecutively.

The Court of Appeal acknowledged the aggravating factor of the offence occurring while the appellant was on conditional liberty but also recognised the risk of institutionalisation and the potential for the "Ellis" discount. In applying the totality principle, the Court concluded that the overall sentence should reflect the cumulative penalty for all the offences if committed consecutively, while also providing a discount to account for the likelihood of the appellant being incarcerated. After careful consideration of all factors, the Court determined that a sentence of 18 months imprisonment, with a non-parole period of 9 months, was appropriate. This sentence balanced the need for punishment and deterrence with the principles of sentencing proportionality and the risk of institutionalisation.

Orders

Orders of the court

Sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.

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 SHEFFIELD [2018] NSWDC 514
Hearing dates:	8 June 2018
Date of orders:	08 June 2018
Decision date:	08 June 2018
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.
Catchwords:	CRIMINAL LAW – Sentence – Supply prohibited drug – Methylamphetamine – Aggravation – On conditional liberty at time of offence – Totality – “Ellis” type discount – Risk of institutionalisation .
Legislation Cited:	Drug Misuse and Trafficking Act. Criminal Proceedings Act.
Cases Cited:	Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 Jinnette v R [2012] NSWCCA 217 Parente v R [2017] NSWCCA 284 R v Ellis (1986) 6 NSWLR 603 R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369.
Category:	Sentence
Parties:	The Crown Brandon Sheffield
Representation:	Counsel: Ms L Jardim – Offender Solicitors: Director of Public Prosecutions (Cth)
File Number(s):	2017/385198