Regina v Kenneth Robert Derley - [2001] NSWCCA 419

Reported Decision:
125 A Crim R 308

New South Wales

Court of Criminal Appeal

CITATION: Regina v Kenneth Robert Derley [2001] NSWCCA 419

FILE NUMBER(S): CCA 60821/00

HEARING DATE(S): 15/10/01

JUDGMENT DATE:
15 October 2001

PARTIES :

Kenneth Robert Derley (Applicant)
Regina (Respondent)

JUDGMENT OF: Grove J at 1; Bell J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0661

LOWER COURT JUDICIAL
OFFICER : Blanch CJ/DC

COUNSEL : E L Fullerton SC (Applicant)
R A Hulme (Crown)

SOLICITORS: Michael Croke & Co (Applicant)
S E O'Connor (Crown)

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CASES CITED:
R v Barton [2001] NSWCCA 63 unreported, 5 March 2001
R v Bavadra [2000] NSWCCA 292
R v Harris [2001] NSWCCA 322
R v Lemene [2001] NSWCCA 5
R v Olbrich [1999] HCA 54; 199 CLR 270

DECISION: Application for leave to appeal allowed. Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60821/00

GROVE J

BELL J

15 October 2001

REGINA v Kenneth Robert DERLEY

Judgment

I agree with the orders proposed by Bell J.

: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by the Chief Judge of the District Court following his plea of guilty to a charge of supply prohibited drug (methylamphetamine) in an amount not less that the commercial quantity prescribed for that drug. The offence is provided for in s 25(2) of the Drugs Misuse and Trafficking Act 1985. It carries a maximum sentence of twenty years imprisonment and/or a fine of 3500 penalty units.

3 The applicant asked the sentencing judge to take into account a further four matters in accordance with the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. Those offences, as briefly described in a Form 1 document, comprised two charges of make false statement with intent to obtain financial advantage; one charge of use false instrument, and one charge of possess prohibited drug. The latter offence related to the finding of three ecstasy tablets in the possession of the applicant when he was arrested in connection with the principal offence. The three dishonesty matters set out on the Form 1 document occurred in the period between 12 November and 22 November 1999 and related to the same fraudulent insurance claim.

4 It is convenient to set out the facts of the principal offence as they appear in his Honour's remarks on sentence:

“The facts of the supply charge are that the National Crime Authority was carrying out an investigation and their attention came upon the prisoner and a Mr Cook in April of this year. There was a meeting between the prisoner and Cook at the McDonalds restaurant at Waterloo and it appears that Cook had travelled down from Queensland. They got into an ACT registered motor vehicle and went to Waterloo and then there was further observation of the two of them and…

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 Regina v Kenneth Robert Derley

Details

AGLC: Regina v Kenneth Robert Derley [2001] NSWCCA 419
Case: [2001] NSWCCA 419
Decision Date: 15 October 2001

CaseChat Overview and Summary

In the Court of Criminal Appeal, Kenneth Robert Derley sought leave to appeal against the severity of the sentence imposed on him by the District Court for his conviction of supplying methylamphetamine in a commercial quantity. The court had to decide whether the District Court judge erred in his assessment of Derley's role in the drug supply and whether the sentence imposed was excessive given the circumstances. The applicant's counsel argued that the judge failed to appreciate the role Derley played in the supply of the methylamphetamine and gave undue weight to Derley's prior criminal record and other offences listed in the Form 1 document. The Crown, on the other hand, contended that the sentence was within the proper exercise of discretion and that the judge was not obliged to make detailed findings concerning Derley's role in the offence. The Court found that the sentencing judge was not bound to make specific findings about the role Derley played in the drug supply and that the starting point of twelve years imprisonment was within the range of the proper exercise of discretion. The Court also noted that the applicant's prior criminal history and the quantity of drugs involved in the offence justified a higher sentence. Therefore, the application for leave to appeal was allowed but the appeal was dismissed.

The Court of Criminal Appeal dismissed the appeal and affirmed the sentence imposed by the District Court.

Orders