Sheather v The Queen - [2020] NSWCCA 162

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sheather v R [2020] NSWCCA 162
Hearing dates: 4 June 2020
Date of orders: 17 July 2020
Decision date: 17 July 2020
Before: Johnson J at [1]
Davies J at [2]
Ierace J at [64]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeal – sentencing - drug offences - supply commercial quantity of a prohibited drug – further count of participating in a criminal group on a Form 1
SENTENCING – appeal against sentence – severity - whether sentence was manifestly excessive – whether sentencing judge misused statistics – whether judge diminished the applicant’s favourable subjective circumstances – where sentencing judge found special circumstances arising out of psychiatric report and family circumstances – where applicant’s role was mostly that of a runner but occasionally more high-ranking – where supply well above commercial quantity and highly lucrative – sentence not manifestly excessive – whether parity with co-offenders – where each offender charged with different offences depending on amount of drugs they supplied – where applicant had a number of prior serious offences and gaol time on his record – no justifiable sense of grievance – appeal dismissed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) s 12
Drugs Misuse and Trafficking Act 1985 (NSW) s 25

Cases Cited:
Chamon v R [2020] NSWCCA 112
Hughes v R [2018] NSWCCA 2
Vaiusu v R [2017] NSWCCA 71

Texts Cited:
Nil

Category: Principal judgment
Parties: Daniel James Sheather (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
E Balodis (Respondent)
Solicitors:
R Hill (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/146920
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

25 October 2019

Before:

N Williams DCJ

File Number(s):

2018/146920

Judgment

JOHNSON J: I agree with the orders proposed by Davies J and with his Honour’s reasons.
DAVIES J: On 19 February 2019 in the Local Court the applicant pleaded guilty to one count of supplying a commercial quantity of a prohibited drug being 308.7 grams of cocaine, contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 20 years’ imprisonment and/or 3,500 penalty units. There is a standard non-parole period of ten years’ imprisonment.
The applicant was committed for sentence to the District Court.
The sentence proceedings for the applicant and two co-offenders, Codie Cowan and Kingston Day, were heard by Judge N Williams. The applicant asked her Honour to take into account on a Form 1 a further offence of participating in a criminal group.
On 25 October 2019 Judge N Williams sentenced the applicant to a non-parole period of three years, two months and two days’ imprisonment, commencing on 23 May 2018 and expiring 24 July 2021 with a balance of term of one year, eight months and 13 days’ imprisonment expiring 6 April 2023.
The applicant originally…

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 Sheather v The Queen

Details

AGLC: Sheather v The Queen [2020] NSWCCA 162
Case: [2020] NSWCCA 162
Decision Date: 17 July 2020

CaseChat Overview and Summary

The appeal before the court was brought by Sheather, who sought to overturn his sentence for drug-related offences. Sheather was found guilty of supplying a commercial quantity of a prohibited drug and participating in a criminal group. He contested the severity of the sentence, arguing that it was manifestly excessive and that the sentencing judge had misused statistics and failed to consider his favourable personal circumstances. The court was required to determine whether the sentence imposed was manifestly excessive, whether the sentencing judge had misused statistics, and whether the judge had appropriately considered the applicant's favourable personal circumstances.

The court found that the sentence was not manifestly excessive, considering the nature and scale of the offending, which involved a substantial supply of drugs. The court noted that the applicant's role in the criminal group was primarily that of a runner, but he occasionally held a more senior position. The supply was well above the commercial quantity threshold and was highly profitable. The court also examined the sentencing judge's consideration of the special circumstances, including the psychiatric report and family circumstances, and concluded that these factors had been appropriately weighed. The court rejected the argument that the sentence was disproportionate when compared to co-offenders, noting that each offender faced different charges based on the amount of drugs they supplied. The applicant's criminal history, which included multiple prior serious offences and previous incarcerations, further supported the sentence imposed.

In light of the considerations outlined above, the court dismissed the appeal. The court found no basis for the applicant to feel aggrieved by the sentence, which was considered appropriate given the gravity of the offences and the applicant's criminal history. The final orders of the court confirmed the dismissal of the appeal and upheld the original sentence.

Orders