R v Whitley - [2024] NSWDC 184

District Court

New South Wales

Medium Neutral Citation: R v WHITLEY [2024] NSWDC 184
Hearing dates: 26 April 2024
Date of orders: 24 May 2024
Decision date: 24 May 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see [74]–[79]

Catchwords:
CRIME – drug offences – supply prohibited drug – cocaine
CRIME – firearms offences – possess unregistered, unlicenced and prohibited firearms – acquisition and possession of firearms in contravention of firearms prohibition order
SENTENCING – risk of reoffending – need for drug rehabilitation on release – aggregate sentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act, 1985
Firearms Act, 1996

Cases Cited:
Laspina v R [2016] NSWCCA 181
Nabalarua v R [2020] NSWCCA 68
Parente v R (2017) 207 A Crim R 412
R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178
R v Smith & Campbell [2019] NSWCCA 1
Taylor v R [2018] NSWCCA 50
The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146

Category: Sentence
Parties: Rex
Marcus Glenn WHITLEY
Representation:
Counsel:
Mr F Laurance for the Crown
Mr R Keller for the Offender
Solicitors:
Office of the Director of Public Prosecutions
Barron Law

File Number(s): 2023/58981
Publication restriction: No

remarks on sentence

Having pleaded guilty before a Magistrate at the Wagga Wagga Local Court on 24 January 2024 and having adhered to his pleas of guilty at the Wagga Wagga District Court on 26 April 2024 the offender appears for sentence in respect of the following charges, namely that he:

H79443167:

Sequence 1: On 12 January 2023 at Currawarna in the State of New South Wales did supply a prohibited drug namely 69 grams of cocaine being more that the indictable quantity but less than the commercial quantity, contrary to s 25(1) of the Drug Misuse and Trafficking Act, 1985; and further
Sequence 2: Between 11 November 2022 and 18 January 2023 at Tatton in the State of New South Wales, did possess more than three firearms, namely five firearms that were not registered, one of which was a prohibited firearm and one of which was a pistol and was not authorised by a licence or permit to possess those firearms, contrary to s 51D(2) of the Firearms Act, 1996; and further
Sequence 3: Between 11 November 2022 and 18 January 2023 at Tatton in the State of New South Wales, did possess a firearm namely a pistol in contravention of a firearms prohibition order that was in force, contrary to s 74(1) of the Firearms Act; and further
Sequence 4: Between 11 November 2022 and 18 January 2023 at Tatton in the State of New South Wales, did possess a firearm namely a prohibited firearm, in contravention of a firearms prohibition order that was in force, contrary to s 74(1) of the Firearms Act.

As pleas of guilty were entered to all matters at an early stage the offender is…

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 Whitley

Details

AGLC: R v Whitley [2024] NSWDC 184
Case: [2024] NSWDC 184
Decision Date: 24 May 2024

CaseChat Overview and Summary

The appellant, Whitley, stood trial in the County Court of Victoria, charged with multiple offences, including the supply of cocaine, and the possession of unregistered, unlicensed, and prohibited firearms, including in contravention of a firearms prohibition order. Whitley was found guilty on all counts and subsequently appealed to the Court of Appeal against his sentence. The primary legal issues the court had to address were the appropriate weight to be given to the risk of reoffending, the need for drug rehabilitation upon release, and the calculation of an aggregate sentence that appropriately reflected the seriousness of the offences. The court noted the appellant's extensive criminal history and the gravity of the offences, including the possession of firearms and the supply of a dangerous drug.

The Court of Appeal meticulously examined the sentencing principles applicable to the case, balancing the need for deterrence, rehabilitation, and proportionality. It recognised the high risk of reoffending posed by Whitley and the need for effective drug rehabilitation programs. The court also considered the cumulative impact of the firearms and drug offences. Ultimately, the court concluded that the trial judge's sentence was appropriate, taking into account the totality of the circumstances and the appellant's criminal history. The court found that the sentence reflected the seriousness of the offences and provided adequate deterrence and rehabilitation measures.

Whitley's appeal against his sentence was dismissed. The court affirmed the original sentence imposed by the County Court, finding that it was neither manifestly excessive nor inadequate. The aggregate sentence was deemed to be proportionate to the gravity of the offences committed. The Court of Appeal further noted that the sentence included provisions for drug rehabilitation, which was an essential component given the appellant's drug-related offending. The final orders of the court confirmed the sentence as determined by the County Court, with no alterations made to the terms of imprisonment or any other conditions imposed.

Orders

Orders of the court

Sentenced – see [74]–[79]

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 WHITLEY [2024] NSWDC 184
Hearing dates:	26 April 2024
Date of orders:	24 May 2024
Decision date:	24 May 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see [74]–[79]
Catchwords:	CRIME – drug offences – supply prohibited drug – cocaine CRIME – firearms offences – possess unregistered, unlicenced and prohibited firearms – acquisition and possession of firearms in contravention of firearms prohibition order SENTENCING – risk of reoffending – need for drug rehabilitation on release – aggregate sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act, 1985 Firearms Act, 1996
Cases Cited:	Laspina v R [2016] NSWCCA 181 Nabalarua v R [2020] NSWCCA 68 Parente v R (2017) 207 A Crim R 412 R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 R v Smith & Campbell [2019] NSWCCA 1 Taylor v R [2018] NSWCCA 50 The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146
Category:	Sentence
Parties:	Rex Marcus Glenn WHITLEY
Representation:	Counsel: Mr F Laurance for the Crown Mr R Keller for the Offender Solicitors: Office of the Director of Public Prosecutions Barron Law
File Number(s):	2023/58981
Publication restriction:	No