Brereton JA at [1]; Bellew J at [66]; Campbell J at [73]
Decision:
(1) Extend time for the applicant to file a Notice of Appeal to the date on which it was filed;
(2) Grant leave to the applicant to appeal against the aggregate sentence imposed on [redacted] by the District Court;
(3) Allow the appeal; and
(4) Quash the aggregate sentence imposed in the District Court on [redacted], and in lieu thereof:
(a) Impose an aggregate sentence of eight years’ imprisonment [redacted];
(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of six years, and specify that the earliest date the applicant will be eligible to be released on parole is [redacted]; and
(c) Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:
(i) Count 1 (ongoing supply of firearms): four years, with a non-parole period of three years;
(ii) Count 2 (supply large commercial quantity of prohibited drug): six years and eight months, with a non-parole period of five years.
(5) Upon the grounds that the order is necessary to protect the safety of a person for the purposes of the Court Suppression and Non‑Publications Orders Act 2010, s 8(1)(c), and that it is necessary in the public interest for the order to be made, and that public interest significantly outweighs the public interest in open justice for the purposes of s 8(1)(e), disclosure of information tending to reveal the identity of the applicant is prohibited.
Catchwords:
CRIME – Appeals – Appeal against sentence – Firearms offences – Unlawfully sell firearms three or more times – Drug offences – Supply large commercial quantity of prohibited drug – Discounts – Guilty plea and assistance to authorities – Whether error in respect of discount – Discount at the low end of available range but no error established
APPEALS – Further evidence – Evidence not adduced at sentencing – Firearms test report – Whether relevance and significance not appreciated below – Where sentencing judge’s assessment of objective seriousness of firearms offence proceeded on misapprehension due to absence of regard to mitigating effect of report – Evidence admitted
CRIME – Appeals – Appeal against sentence – Manifest excess – Resentencing – Where sentencing judge’s assessment of objective seriousness of firearms offence erroneous in light of further evidence – Where relatively low discount applied by sentencing judge – Use of comparative cases and statistics – Accumulation – Appeal allowed
[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.
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AGLC
Rodriego (a Pseudonym) v The Queen [2021] NSWCCA 237
Case
[2021] NSWCCA 237
Decision Date
CaseChat Overview and Summary
In the case of Rodriego (a Pseudonym) v The Queen, the appellant, identified by a pseudonym, challenged the sentence imposed by the court following his conviction for multiple firearms and drug offences. The court was tasked with considering the appeal against the sentence on several grounds, including the appropriateness of the discount applied by the sentencing judge and whether there was a manifest excess in the sentence. The appeal was heard by the High Court of Australia.
The primary legal issues the court had to address were whether the sentencing judge erred in the discount applied to the appellant’s sentence, and whether the error was such that it led to a manifest excess in the sentence. The court also had to consider whether additional evidence, which was not presented at the original sentencing hearing, could have altered the sentencing judge’s assessment of the seriousness of the firearms offences.
The court found that while the discount applied by the sentencing judge was at the lower end of the available range, there was no clear error in the application of the discount. However, the court recognised that the sentencing judge's assessment of the objective seriousness of the firearms offence was influenced by a misapprehension, as it did not take into account the mitigating effect of a firearms test report which was subsequently admitted. The court concluded that the sentencing judge's assessment was therefore erroneous, and the resulting sentence constituted a manifest excess. Consequently, the appeal was allowed, and the matter was remitted for resentencing.
The High Court ordered that the appeal be allowed and the case be remitted to the sentencing court for resentencing, taking into account the additional evidence and the appropriate discount.