Semple v The Queen - [2019] NSWCCA 40

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Semple v R [2019] NSWCCA 40
Hearing dates: 20 February 2019
Decision date: 01 March 2019
Before: Hoeben CJ at CL at [1];
Price J at [52];
Adamson J at [53]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – two counts of supplying a prohibited drug – sentence of imprisonment of 4 years with a non-parole period of 2 years – whether sentence manifestly excessive – whether applicant denied procedural fairness – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 112(1), 319
Criminal Appeal Act 1912 (NSW) – s 5(1)
Drug Misuse and Trafficking Act 1985 (NSW) – ss 10(1), 25(1)
Cases Cited: Bland v R [2014] NSWCCA 82
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
DL v The Queen [2018] HCA 32; 92 ALJR 764
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Engert (1995) 84 A Crim R 67
R v Robert Borkowski [2009] NSWCCA 102
R v Tucakavoic (District Court (NSW), Williams SC DCJ, 25 January 2017, unrep)
Upadhyaya v R [2017] NSWCCA 162
Zhao v R [2016] NSWCCA 179
Category: Principal judgment
Parties: Robert Lachlan Semple – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Applicant in person
H Roberts – Respondent Crown
Solicitors:
Applicant in Person
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2016/327482
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 March 2018

Before:

McClintock SC DCJ

File Number(s):

2016/327482

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant, who is self-represented in these proceedings, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence imposed upon him by his Honour Judge McClintock SC at Sydney District Court on 16 March 2018.

On 28 November 2017 the applicant pleaded guilty to two offences of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). The applicant also asked the court to take into account when sentencing him for the second offence a further offence of supplying a prohibited drug (contrary to s 25(1) DMTA) and an offence of possessing a prohibited drug (contrary to s 10(1) DMTA) (the Form 1 matters).
The two supply offences on the indictment related to 6.0g of methylamphetamine with a purity of 79 per cent and a value of $1,250 – $3,600 (Count 1) and 367.3g of 1,4-butanediol (Count 2). The Form 1 supply matter related to 77.2g of 1,4-butanediol with a value of $330 – $530 and the Form 1 possession matter related to 1.6g of ketamine with a value of $100 – $200.
The sentence proceedings were heard on 13 and 16 March 2018. On 16 March 2018 the sentencing judge imposed an…

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 Semple v The Queen

Details

AGLC: Semple v The Queen [2019] NSWCCA 40
Case: [2019] NSWCCA 40
Decision Date: 01 March 2019

CaseChat Overview and Summary

In the matter of Semple v The Queen, the High Court was asked to review the sentencing of the applicant, who had been convicted of two counts of supplying a prohibited drug. The primary issue before the court was whether the sentence imposed, which was imprisonment for a period of four years with a non-parole period of two years, was manifestly excessive or whether the applicant had been denied procedural fairness during the sentencing process. The applicant contended that the sentence was manifestly excessive, arguing that the trial judge failed to properly consider mitigating factors and that the sentence was disproportionate to the offence.

The court considered the principles of sentencing in Australia, including the need for sentences to reflect both the culpability of the offender and the need for general deterrence. The court examined the sentencing remarks of the trial judge and concluded that the judge had indeed considered the relevant mitigating factors, albeit not in detail. The court found that the sentence imposed was within the range of reasonable sentences that could be imposed for the offence, and that there was no manifest excess in the sentence. Furthermore, the court held that the applicant had not been denied procedural fairness, as the trial judge had considered all relevant factors in determining the sentence.

Accordingly, the court dismissed the appeal. The High Court found that the sentence imposed was not manifestly excessive and that the applicant had not been denied procedural fairness during the sentencing process. The original sentence of imprisonment for a period of four years with a non-parole period of two years was upheld.

Orders