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Robinson v R

Robinson v R

Case [2012] NSWCCA 26 21 May 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Robinson v R [2012] NSWCCA 26
Hearing dates: 2 March 2012
Decision date: 21 May 2012
Before: Macfarlan JA at [1]
Rothman J at [2]
Davies J at [5]
Decision:
(1) Grant leave to appeal.
(2) Quash the sentence of Solomon DCJ of 31 October 2008 in respect of Count 2.
(3) In lieu thereof sentence the Appellant to a non-parole period of 3 years commencing 17 August 2009 and expiring 16 August 2012 with an additional term of 3 years to commence at the expiration of the non-parole period and expiring 16 August 2015.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - two counts of supply drugs - different types of drugs - accumulation of sentences - principles - no commonality of criminality for different drugs.
Legislation Cited: Drug Misuse and Trafficking Act 1985
Cases Cited: Ellis v R [2010] NSWCCA 298
House v The King (1936) 55 CLR 499
Locke v R [2010] NSWCCA 296
Luu v R [2008] NSWCCA 285
McKellar v R [2010] NSWCCA 295
Muldrock v The Queen [2011] HCA 39
O'Brien v R [2010] NSWCCA 297
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Blair [2005] NSWCCA 78
R v Hammoud (2000) 118 A Crim R 66
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Category: Principal judgment
Parties: Lorraine Robinson (Applicant)
The Crown
Representation: A Francis (Applicant)
J Girdham (Crown)
Manfred Dougall & Company (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): CCA 2008/1168
Decision under appeal

Date of Decision:

2008-10-31 00:00:00

Before:

Solomon DCJ

File Number(s):

2008/1168

Judgment

MACFARLAN JA: I agree with Davies J.

ROTHMAN J: I agree with the orders proposed by Davies J and generally with his reasons therefor.

Neither sentence is, on its own, manifestly excessive, but the overall sentence imposed is greater than is desirable to reflect the total criminality. As a consequence, the level of accumulation is too great. I agree with Davies J that greater concurrency is appropriate: Pearce v R [1998] HCA 57; (1998) 194 CLR 610.

I do not consider that it is necessary, as distinct from desirable, to explain the reasons for the degree of accumulation or concurrence beyond stating the principle to be applied and the facts upon which it is based. Instinctive synthesis may often result in some lack of transparency. Nevertheless, the result here is excessive and I agree with the orders proposed.

DAVIES J: On 31 October 2008 the Applicant was sentenced after trial for two offences contrary to the Drug Misuse and Trafficking Act 1985. Count 1 was the supply of a commercial quantity of MDMA, namely 125.42 grams (contrary to s 25(2) of the Act). The maximum penalty for that offence was 20 years imprisonment or 3,500 penalty units or both. The offence had a standard non-parole period of 10 years.

Count 2 was for the supply of a…

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 Robinson v R

Details

AGLC: Robinson v The Queen [2012] NSWCCA 26
Case: [2012] NSWCCA 26
Decision Date: 21 May 2012

CaseChat Overview and Summary

Robinson was convicted on two counts of supplying different types of drugs and was sentenced to imprisonment terms that were to be served consecutively. He applied for leave to appeal against the sentence, arguing that the accumulation of sentences was excessive and disproportionate. The court considered the legal principles governing the accumulation of sentences for different types of drug offences. It examined whether the different drugs supplied exhibited any commonality of criminality that could justify consecutive sentencing.

The court addressed whether the severity and nature of the drug offences warranted the imposition of consecutive sentences. It assessed the principles that guide the accumulation of sentences, particularly the need to avoid excessive and disproportionate punishment. The court also considered the principles of parity and proportionality in sentencing. It deliberated on whether the sentence imposed aligned with the legal standards set for drug supply offences, particularly when the drugs involved were of different types.

The court concluded that there was no commonality of criminality between the different types of drugs supplied, and thus, the imposition of consecutive sentences was not justified. It found that the accumulation of sentences did not align with the principles of proportionality and parity in sentencing. Consequently, the court granted leave to appeal against the sentence. The matter was remitted back to the sentencing court for reconsideration in light of the court's determination.

The final orders included the grant of leave to appeal against the sentence and the direction that the matter be remitted to the sentencing court for reconsideration of the sentence. The court's decision emphasised the importance of applying the principles of proportionality and parity in sentencing for drug supply offences, particularly when the drugs involved are of different types.

Orders