See v R - [2020] NSWCCA 272

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: See v R [2020] NSWCCA 272
Hearing dates: 19 October 2020
Date of orders: 26 October 2020
Decision date: 26 October 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Bellew J at [54]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
APPEAL – sentence appeal – where applicant sentenced with co-offender – drug offences – where sentencing judge did not indicate standard non-parole periods – where aggregate sentence imposed – whether failure to indicate non-parole periods requires appellate intervention – whether sentencing judge gave consideration to objective seriousness of offending – whether sentencing judge gave consideration to subjective case

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:
Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581
Gal v R [2015] NSWCCA 242
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
R v Brown [2012] NSWCCA 199
Tepania v R [2018] NSWCCA 247
Trimarchi v R [2019] NSWCCA 189
Yeung v R [2018] NSWCCA 52

Category: Principal judgment
Parties: Young In See (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
K Jeffreys (Respondent)
Solicitors:
Ross Hill & Associate (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/49519
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

3 October 2019

Before:

Acting Judge Madgwick

File Number(s):

2018/49519

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders he proposes.
HARRISON J: Young In See seeks leave to appeal against the sentence imposed upon him by Madgwick A-DCJ on 3 October 2019 at the Sydney District Court. Mr See pleaded guilty on 23 July 2019 and was sentenced to an aggregate term of imprisonment of 8 years commencing on 14 February 2018 with an aggregate non-parole period of 5 years. The details of the offences, together with the maximum penalties and indicated sentences were as follows:

Count	Offence	Maximum Penalty Standard Non-Parole Period	Sentence Indicated
1	Supply methylamphetamine (231.4g) s 25(1) Drug Misuse and Trafficking Act 1985 Form 1 offences for Count 1: Count 2: Supply 3,4-MDMA (5.50g) s 25(1) Drug Misuse and Trafficking Act 1985 Count 3: Supply cocaine (42.88g) s 25(1) Drug Misuse and Trafficking Act 1985 Count 4: Supply heroin (5.62g) s 25(1) Drug Misuse and Trafficking Act 1985	15 years No SNPP 15 years No SNPP 15 years No SNPP 15 years No SNPP	3 years
5	Knowingly deal with proceeds of crime ($27,850) s 193B(2) Crimes Act 1900	15 years	1 year
6	Knowingly take part in supply of commercial quantity of methylamphetamine (499.8g) s 25(2) Drug Misuse and Trafficking Act 1985	20 years SNPP 10 years	4 years
7	Knowingly take part in supply of large commercial quantity of 3,4-MDMA (1,004.4g) s 25(2) Drug Misuse and Trafficking Act

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 See v R

Details

AGLC: See v The Queen [2020] NSWCCA 272
Case: [2020] NSWCCA 272
Decision Date: 26 October 2020

CaseChat Overview and Summary

The case of See v R involved the applicant, who had been sentenced for drug-related offences alongside a co-offender. The applicant sought an appeal against the sentence imposed by the trial judge. The appeal was heard in the High Court of Australia, which considered whether the absence of standard non-parole periods in the sentencing remarks required appellate intervention, and whether the sentencing judge had adequately considered both the objective seriousness of the offending and the individual circumstances of the applicant.

The primary legal issues the court addressed were whether the omission of the standard non-parole periods from the sentencing remarks was a material error necessitating intervention, and whether the sentencing judge appropriately assessed the objective gravity of the crimes and the subjective circumstances of the applicant. The court examined the sentencing remarks to determine if they contained sufficient reasoning to justify the aggregate sentence imposed, and if the judge had properly weighed the relevant factors in arriving at the sentence.

The High Court found that the failure to mention the standard non-parole periods did not necessarily render the sentence unlawful, provided the overall remarks demonstrated a sound understanding of the principles of sentencing. The court concluded that the sentencing judge had indeed considered the objective seriousness of the offences and the subjective factors relevant to the applicant. The remarks, although not explicitly referencing the non-parole periods, adequately reflected the judge's evaluation of the case, thereby justifying the sentence imposed. Consequently, the appeal was dismissed as the court was satisfied with the comprehensive nature of the sentencing remarks.

The final orders of the court were to dismiss the appeal and uphold the sentence as originally imposed by the trial judge. The High Court's decision emphasised the importance of a reasoned approach in sentencing, while also allowing for some flexibility in the presentation of non-parole periods within the sentencing remarks.

Orders