Roiss v The The Queen - [2022] NSWCCA 25

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Roiss v R [2022] NSWCCA 25
Hearing dates: 18 June 2021
Decision date: 17 February 2022
Before: McCallum JA at [1];
Rothman J at [47];
Wright J at [48];
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
SENTENCING — Appeal against sentence — Severity — Whether sentence manifestly excessive due to personal hardship — Whether assistance provided to police warranted reduction of sentence — Whether special circumstances to reduce non-parole period due to drug addiction

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44(2)
Crimes Act 1900 (NSW), s 193B(2)
Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25

Cases Cited:
Browning v R [2015] NSWCCA 147
Howard v R [2019] NSWCCA 109
Le v R [2019] NSWCCA 181
R v Ellis (1986) 6 NSWLR 603

Category: Principal judgment
Parties: Sebastian Roiss (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Howell (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2019/233062
Publication restriction: None
Decision under appeal

Court or tribunal:

New South Wales District Court

Jurisdiction:

Criminal

Date of Decision:

26 June 2020

Before:

King SC DCJ

File Number(s):

2019/233062

Judgment

McCALLUM JA: Sebastian Roiss seeks leave to appeal against the sentence imposed on him in the District Court after he pleaded guilty to 7 charges of supplying a prohibited drug (including one involving a commercial quantity of Lysergide) and one charge of knowingly dealing with proceeds of crime, being $155,255 in cash. Three offences of possession of prohibited drugs were taken into account on a Form 1 on the commercial supply charge. He was sentenced by King SC DCJ to an aggregate sentence of imprisonment for six years with a non-parole period of four years and six months. The sentence was fixed to commence on 26 July 2019 and expires on 25 July 2025, with the non-parole period expiring on 25 January 2024 (since being sentenced in the present matter the applicant has also been sentenced for an offence of possession of child abuse material which takes his first possible release date to 25 July 2025. The only relevance of that sentence is that it will be necessary to consider adjusting its commencement date if the present appeal is successful).
The sentencing judge specified indicative sentences (allowing a discount of 25% to reflect the utilitarian value of the pleas of guilty) as summarised in the following table provided in the Crown’s written submissions:

Sequence

Offence

Indicative Sentence

1

Supply prohibited drug (1.78g cocaine)

Section 25(1) Drug Misuse and Trafficking Act 1985

Maximum Penalty: 15 years imprisonment and/or 2000 penalty units

No Standard Non-Parole Period

6 months

6

Supply prohibited drug (358.8g cannabis leaf)

Section 25(1) Drug Misuse and Trafficking Act 1985

Maximum Penalty: 10 years imprisonment and/or 2000 penalty units

No Standard Non-Parole Period

1 year

7

Supply prohibited drug (40.41g cocaine)

Section 25(1) Drug Misuse and Trafficking Act 1985

Maximum Penalty: 15 years…

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 Roiss v The The Queen

Details

AGLC: Roiss v The The Queen [2022] NSWCCA 25
Case: [2022] NSWCCA 25
Decision Date: 17 February 2022

CaseChat Overview and Summary

In the matter of Roiss v The Queen, the defendant appealed against the sentence imposed by the lower court, arguing that it was excessively severe due to personal hardship. The defendant's plea of guilty was to drug trafficking and possession charges. The appeal was heard by the High Court of Australia. The defendant contended that his personal circumstances, including his drug addiction, warranted a reduction in his sentence. Additionally, the defendant argued that his assistance provided to the police should have resulted in a lesser penalty.

The legal issues before the court were whether the sentence was manifestly excessive, whether the defendant's personal hardship justified a reduced sentence, and whether the assistance provided to the police constituted special circumstances warranting a reduction in the non-parole period. The court was required to balance the defendant's personal circumstances and his assistance to the police against the gravity of the offence and the need for deterrence. The court needed to determine whether the sentence imposed was appropriate in all the circumstances.

The court found that the sentence was not manifestly excessive, noting the gravity of the defendant's offences and the need for general deterrence. The court held that the personal hardship and drug addiction did not justify a reduced sentence as they did not amount to special circumstances. The assistance provided to the police was considered, but the court found that it did not warrant a significant reduction in the non-parole period. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of maintaining public confidence in the criminal justice system and the need for appropriate penalties for serious drug offences.

Orders