Sande v The The King - [2022] NSWCCA 236

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sande v R [2022] NSWCCA 236
Hearing dates: 6 July 2022
Date of orders: 6 July 2022
Decision date: 18 November 2022
Before: Meagher JA at [1];
Fullerton J at [2];
Ierace J at [3]
Decision:
Reasons published for order made on 6 July 2022:
1) The application for leave to appeal is refused.

Catchwords:
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Manifest excess – Where applicant sentenced to a term of imprisonment for one count of supplying a prohibited drug – Whether sentence manifestly excessive – Where applicant submitted that the nominal starting point of the sentence was outside the appropriate range – Consideration of comparable cases and sentencing statistics relied on by the applicant

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), s 124I
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Donaghey v R [2015] NSWCCA 119
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pham v R [2017] NSWCCA 75
Sahyoun v R [2020] NSWCCA 87
Sahyoun v R (No 2) [2020] NSWCCA 95
Vandeventer v R [2013] NSWCCA 33

Category: Principal judgment
Parties: Kamil Sande (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Schaudin (Applicant)
A L Bonnor (Crown)
Solicitors:
Malouf Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2020/286896
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

10 February 2022

Before:

Craigie SC DCJ

File Number(s):

2020/286896

Judgment

MEAGHER JA: At the conclusion of the hearing of this application for leave to appeal on 6 July 2022, the Court ordered that such leave be refused, and reserved its reasons for doing so. I have had the advantage of reading in draft the reasons of Ierace J for joining in the making of that order. I agree with his Honour’s reasons, and in particular those at [43]-[49] for concluding that leave to appeal was to be refused because it was not arguable that the sentence imposed was unreasonable or plainly unjust.
FULLERTON J: I also agree with Ierace J.
IERACE J: Kamil Sande (“the applicant”) sought leave to appeal against the severity of a sentence imposed on him by Craigie SC DCJ (“the sentencing judge”) on 10 February 2022. The applicant was charged with a count of supplying a prohibited drug, being 42.95g of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty was 15 years imprisonment and/or a fine of up to $220,000. The sentencing judge took into account two matters on a Form 1, which were an offence of possessing a prohibited drug (1.20g of heroin) and an offence of dealing with property in relation to which there were reasonable grounds to suspect that that property, which was $1,300 in cash, was the proceeds of…

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 Sande v The The King

Details

AGLC: Sande v The The King [2022] NSWCCA 236
Case: [2022] NSWCCA 236
Decision Date: 18 November 2022

CaseChat Overview and Summary

The case of Sande v The King involved an appeal against a sentence imposed on the applicant, Sande, who was found guilty of supplying a prohibited drug. The applicant sought leave to appeal on the basis that the sentence was manifestly excessive. The matter was heard in the court of appeal, which had to determine whether the sentence was indeed outside the appropriate range and warranted an appeal.

The primary legal issue before the court was whether the sentence imposed by the trial court was manifestly excessive. Sande argued that the nominal starting point of the sentence was outside the appropriate range and relied on comparable cases and sentencing statistics to support this contention. The court needed to assess these submissions and determine if they demonstrated that the sentence was manifestly excessive.

The court considered the submissions made by Sande, focusing on the appropriateness of the starting point of the sentence and the reliance on comparable cases and sentencing statistics. After a thorough analysis, the court concluded that the sentence imposed was not manifestly excessive. The court found that the trial judge had adequately considered the relevant sentencing principles and the circumstances of the case, and therefore, the sentence was within the appropriate range. Consequently, the court dismissed the application for leave to appeal.

In summary, the court of appeal determined that the sentence imposed on Sande was not manifestly excessive. The court dismissed the application for leave to appeal, affirming the sentence of the trial court.

Orders