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Redfern v R

Redfern v R

Case [2012] NSWCCA 178 23 August 2012

Breach of Contract

Unconscionable Conduct

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Brent REDFERN v R [2012] NSWCCA 178
Decision date: 23 August 2012
Before: McClellan CJ at CL at [1]
Adams J at [2]
Hoeben J at [37]
Decision:
1. Leave to appeal is granted, the appeal allowed.
2. The sentences are quashed and are substituted for the following sentences:
(i)As to the first charge (supply prohibited drug, namely cocaine on 10 June 2010 contrary to s 25(1) Drug Misuse and Trafficking Act 1985) a fixed term of imprisonment of 1 year and 6 months, commencing 10 June 2010.
(ii)As to the second charge (supplying prohibited drugs on an ongoing basis, namely cocaine, between 7 May 2010 and 26 May 2010 contrary to s 25A(1) Drug Misuse and Trafficking Act 1985) taking into account the matter on the Form 1, imprisonment with a non-parole period of 2 years and 6 months, commencing 10 December 2010 and expiring 9 June 2013, with a balance of term of 2 ½ years expiring 9 December 2015.

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Gore and Hunter v R [2010] NSWCCA 330
Hinchcliffe v R [2010] NSWCCA 306
Maglis v R [2010] NSWCCA 247
Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463
R v Cheikh [2004] NSWCCA 448
R v Collins [2004] NSWCCA 30
R v Esquilant [2007] NSWCCA 248
R v Hanson (District Court of NSW, Berman SC DCJ, 23 March 2007, unreported)
R v Henry [1999] NSWCCA 111
R v Hide [2003] NSWCCA 371
R v Hoon and Pouoa [2000] NSWCCA 137; R v Khaled [2001] NSWCCA 169
R v Kairouz [2005] NSWCCA 247
R v Leroy (1984) 13 A Crim R 469
R v Luong [2002] NSWCCA 238
R v Malavetas (District Court of NSW, Nicholson SC DCJ, 22 January 2009, unreported)
R v Mirza [2007] NSWCCA 248
R v Nemes (Court of Criminal Appeal, 28 August 1997, unreported).
R v Sakkar [2003] NSWCCA 26
R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47;
R v Vu [2005] NSWCCA 266
R v Zarei [2002] NSWCCA 350
R v Kostecoglou [2002] NSWCCA 514
Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Schembri v R [2010] NSWCCA 149
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Thorn v R [2009] NSWCCA 294; (2008) 198 A Crim R 135
Category: Principal judgment
Parties: Brent Redfern (Applicant)
The Crown (Respondent)
Representation: C Smith (Applicant)
T Smith (Respondent)
Legal Aid (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2010/146384
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-12-07 00:00:00

Before:

English DCJ

File Number(s):

2010/146384

Judgment

McCLELLAN CJ at CL: I have read the judgments of both Hoeben JA and Adams J in draft. As both their…

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 Redfern v R

Details

AGLC: Redfern v R [2012] NSWCCA 178
Case: [2012] NSWCCA 178
Decision Date: 23 August 2012

CaseChat Overview and Summary

The applicant, Brent Redfern, appealed against his sentences for drug supply offences and an offence of dealing with the suspected proceeds of crime. The Court of Criminal Appeal allowed the appeal and substituted new sentences. The primary issue was whether the District Court erred in sentencing the applicant. The secondary issues were whether the applicant's subjective circumstances provided sufficient mitigation and whether the sentences were manifestly excessive. The Court found that the District Court erred in using the proceeds of crime offence to increase the sentence for the ongoing supply charge. It was also found that the sentencing Judge erred in finding that there was little mitigation in the applicant's subjective circumstances. The Court concluded that a less severe sentence was warranted. Leave to appeal was granted, the appeal allowed and the sentences quashed and substituted with a fixed term of imprisonment of 1 year and 6 months for the first charge and imprisonment with a non-parole period of 2 years and 6 months for the second charge.

Orders