Remington v R - [2018] NSWCCA 98

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Remington v R [2018] NSWCCA 98
Hearing dates: 12 March 2018
Date of orders: 12 March 2018
Decision date: 28 May 2018
Before: Bathurst CJ at [1];
Fullerton J at [2];
Campbell J at [35]
Decision:
1. Leave to appeal granted.

2. The appeal is allowed.

3. The sentences imposed in the District Court at Nowra on 16 August 2017 are quashed and in lieu the following sentence are imposed:

(a) On the charge of supplying a prohibited drug, being 12.94 grams of methamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act, imprisonment for 12 months to date from 16 August 2017 with a non-parole period of 6 months expiring on 15 February 2018. During the currency of her parole period, the Court recommends the applicant:

(i) Accept the supervision of Community Corrections Officers (Probation and Parole) and, if they consider it appropriate, and on condition of her being assessed as suitable, to resume participation in the OnTRACC (Transition, Reintegration and Community Connection) program; and

(ii) Abide by any direction or recommendation made by ACSO as to participation in a rehabilitation course from 1 May 2018 to 15 August 2018.

(b) On the charge of supplying a prohibited drug, being 1.62 grams of methamphetamine contrary to the same Act, a fixed term of imprisonment of 2 months to date from 16 August 2017.

(c) On the charge of supplying a prohibited drug being 1.86 grams of buprenorphine contrary to the same Act, a fixed term of imprisonment for 2 months to date from 16 August 2017.

(d) On the charges laid under the s 166 Certificate:

(i) On the charge of bringing a thing, namely tobacco in a specified quantity, into a place of detention without lawful authority (since repealed), pursuant to s 9 of the Crimes (Sentencing Procedure) Act, a bond to be of good behaviour for a period of 12 months to date from 16 August 2017 and to accept supervision of Community Corrections Officers (Probation and Parole) as long as is deemed necessary by a supervising officer of that service and to appear before the Court if called upon to do so at any time during the term of that bond.

(ii) On the charge of driving while suspended, contrary to s 54(3)(a) of the Road Transport Act, a fixed term of imprisonment for 2 months to date from 16 August 2017.

(iii) On each of the two charges of failing to appear in accordance with a bail undertaking, without proceeding to conviction, an order that the charges be dismissed pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act.
(e) To the extent the Court is so empowered direct the appellant be released to parole forthwith.
Catchwords: CRIMINAL LAW – sentence appeal – whether the sentences imposed were manifestly excessive – whether the applicant’s offending constituted trafficking to a substantial degree – whether a sentence other than a custodial sentence was…

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 Remington v R

Details

AGLC: Remington v R [2018] NSWCCA 98
Case: [2018] NSWCCA 98
Decision Date: 28 May 2018

CaseChat Overview and Summary

In the matter of Remington v R, the applicant appealed against the sentences imposed by the lower court. The applicant was convicted of drug trafficking and was sentenced to imprisonment. The applicant argued that the sentences imposed were manifestly excessive and did not adequately consider the objective and subjective circumstances of the offending.

The court was required to determine whether the sentences imposed were manifestly excessive, whether the applicant's offending constituted trafficking to a substantial degree, and whether a sentence other than a custodial sentence was available and/or appropriate. The court was also required to determine whether the lower court had failed to consider the objective and subjective circumstances of the offending.

The court found that the sentences imposed were manifestly excessive and that the lower court had failed to adequately consider the objective and subjective circumstances of the offending. The court found that the applicant's offending did not constitute trafficking to a substantial degree and that a sentence other than a custodial sentence was available and/or appropriate. The court found that the lower court had failed to consider the objective circumstances of the offending, such as the applicant's role in the offending and the quantity of drugs involved. The court found that the lower court had also failed to consider the subjective circumstances of the offending, such as the applicant's background and the impact of the offending on the applicant and their family.

The court allowed the appeal and remitted the matter to the lower court for resentencing. The court ordered that the lower court consider the objective and subjective circumstances of the offending, including the applicant's role in the offending, the quantity of drugs involved, the applicant's background, and the impact of the offending on the applicant and their family. The court ordered that the lower court consider a sentence other than a custodial sentence, such as a community-based order or a suspended sentence.

Orders