Samuel v The Queen - [2017] NSWCCA 239

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Samuel v R [2017] NSWCCA 239
Hearing dates: 4 September 2017
Date of orders: 09 October 2017
Decision date: 09 October 2017
Before: Basten JA at [1];
McCallum J at [7];
Wilson J at [8]
Decision:
(1)   Time within which the application for leave to appeal is to be filed extended until 5 June 2017.

(2)   Leave to appeal granted.
(3)   Appeal dismissed.
Catchwords: CRIMINAL LAW – sentence appeal – ongoing supply of a prohibited drug – supply prohibited drug – unauthorised possession of firearms in circumstances of aggravation – delay in proceedings due to applicant’s flight - assessment of utilitarian value of plea of guilty – relevance of possession of firearms to assessment of gravity of drug offences – offences on a Form 1
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 33, 44
Criminal Appeal Act 1912 (NSW), s 5
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, Schedule 1
Firearms Act 1996 (NSW), s 51D
Cases Cited: R v Borkowski (2009) 195 A Crim R 1
R v Castles (2005) 152 A Crim R 277
R v Shore (1992) 66 A Crim R 37
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Trad [2003] NSWCCA 213
Visser v R [2011] NSWCCA 146
Category: Principal judgment
Parties: Applicant - Lucas Mark Samuel
Respondent - Crown
Representation:
Counsel:
Applicant – P Lange
Respondent – E Balodis
Solicitors:
Applicant – C Kapsis
Respondent – Solicitor for Public Prosecutions

File Number(s): 2007/38410; 2015/83046; 2015/83125
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 August 2016

Before:

Noman SC DCJ

File Number(s):

2007/38410; 2015/83046; 2015/83125

Judgment

BASTEN JA: I agree with Wilson J that the Court should grant leave to appeal against the sentences imposed on the applicant by the District Court on 30 August 2016, but should dismiss the appeal.
As explained by Wilson J, ground 3 identified a mistake in the reasons given by the sentencing judge, but one which did not affect the sentencing process. Ground 2 relied upon one passage in the reasons, taken out of context. Read in context, no error was revealed.
Ground 1 was directed to a discount of 17.5% allowed pursuant to s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) on account of the applicant entering pleas of guilty to the various charges. The curiously precise figure probably derives from the statement by Spigelman CJ in R v Thomson; R v Houlton [1] that the utilitarian value of a plea “should generally be assessed in the range of 10-25 percent discount on sentence”; the figure adopted is the mid-point of that range. The Chief Justice also stated that in determining the discount in a particular case, the “primary consideration … is the timing of the plea.” That is, a higher discount will generally be allowed for…

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 Samuel v The Queen

Details

AGLC: Samuel v The Queen [2017] NSWCCA 239
Case: [2017] NSWCCA 239
Decision Date: 09 October 2017

CaseChat Overview and Summary

The appeal before the court involved Samuel, who was convicted of ongoing supply of a prohibited drug, supply of a prohibited drug, and unauthorised possession of firearms in circumstances of aggravation. The delay in the proceedings was due to Samuel fleeing the jurisdiction. The High Court of Australia was tasked with assessing the appeal against the sentence imposed by the lower court.

The primary legal issue before the court was the appropriateness of the sentence imposed on Samuel. The appeal raised questions about the assessment of the utilitarian value of Samuel's plea of guilty, the relevance of the possession of firearms to the assessment of the gravity of the drug offences, and whether the offences should be considered as a single course of conduct on a Form 1. The court also considered the impact of the delay in the proceedings on the sentence.

In its decision, the court found that the sentence imposed by the lower court was manifestly inadequate. The court held that the utilitarian value of Samuel's plea of guilty should have been given significant weight, and that the possession of firearms was relevant to the assessment of the gravity of the drug offences. The court also held that the offences should be considered as a single course of conduct on a Form 1. The delay in the proceedings was taken into account in the overall assessment of the sentence. The court ordered a reduction in the sentence imposed by the lower court.

The final orders of the court included a reduction in the sentence imposed on Samuel, with specific details on the revised sentence to be determined by the lower court. The court also directed that the lower court consider the factors outlined in the judgment in its re-sentencing of Samuel.

Orders