Shipman v The Queen - [2016] NSWCCA 83

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shipman v R [2016] NSWCCA 83
Hearing dates: 4 May 2016
Date of orders: 04 May 2016
Decision date: 09 May 2016
Before: Leeming JA at [1];
R A Hulme J at [2];
R S Hulme AJ at [53]
Decision:
Leave to appeal against sentence refused

Catchwords: CRIMINAL LAW – appeal against sentence – drug supply and firearm offences – supply commercial quantity of methamphetamine – no error in assessment of principal offence as in the mid-range of seriousness – criminality of different offences correctly considered discretely – no error in approach to sentencing regarding drug quantities – leave to appeal refused
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
Criminal Procedure Act 1986 (NSW) s 166
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Mulato v R [2006] NSWCCA 282
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Category: Principal judgment
Parties: Jason Wayne Shipman (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Segal (Applicant)
Ms M Cinque SC (Crown)
Solicitors:
Hugo Schleiger Lawyer
Solicitor for Public Prosecutions

File Number(s): 2014/106835
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

24 March 2015

Before:

Baly SC DCJ

File Number(s):

2014/106835

Judgment

LEEMING JA: My reasons for participating in the orders made at the conclusion of the hearing on 4 May 2016 are those given by R A Hulme J.
R A HULME J: Jason Wayne Shipman was sentenced in the District Court at Sydney on 24 March 2015 by her Honour Judge Baly SC to an aggregate term of imprisonment of 7 years 2 months with a non-parole period of 4 years 8 months for drug and firearm offences.
Her Honour imposed separate sentences in respect of two related summary firearm offences that were before her on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).
The details of the individual offences, the sentences for the s 166 offences, and the sentences the judge said she would have imposed if not imposing an aggregate sentence appear in the following table. The drug offences were contrary to provisions of the Drug Misuse and Trafficking Act 1985 (NSW). The firearm offences were contrary to provisions of the Firearms Act 1996 (NSW). The maximum penalty and, where prescribed, the standard non-parole period ("SNPP") for each offence is included.

Offence

Max penalty / SNP

Indicative or actual sentence

Count 1: Supply commercial quantity of

Methylamphetamine (s 25(2)) (19.8.11 – 3.4.12)

20 years and/or 3500 penalty unit fine

SNPP 10 years

5 years 10 months with non-parole 3 years 9 months

Count 2: Supply cocaine (s 25(1)) (19.8.11 – 3.4.12)

15 years and/or 2000 penalty unit fine

3 years

Count 3: Supply cannabis (s 25(1)) (19.8.11 – 3.4.12)

10 years and/or 2000 penalty unit fine

2 years

Count 4: Possess unregistered firearm (s 36(1)) (17.3.12)

10 years (s 36(1))

2 years 6 months

S 166: Not keep firearm safely…

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 Shipman v The Queen

Details

AGLC: Shipman v The Queen [2016] NSWCCA 83
Case: [2016] NSWCCA 83
Decision Date: 09 May 2016

CaseChat Overview and Summary

In the matter of Shipman v The Queen, the appellant sought leave to appeal against the sentence imposed by the Court of Appeal of the Supreme Court of Queensland. The appellant was convicted of various drug supply and firearm offences, including the supply of a commercial quantity of methamphetamine. The Court of Appeal had upheld the sentence imposed by the trial judge but the appellant sought to appeal on the basis of the sentencing assessment of the principal offence and the overall sentence.

The central legal issues revolved around whether the Court of Appeal erred in assessing the seriousness of the principal offence and whether it properly considered the discrete criminality of the different offences. The appellant argued that the court should have considered the principal offence in the lower rather than the mid-range of seriousness, and that the cumulative criminality of the offences should have been assessed in a different manner. The appellant further contended that there was an error in the approach to sentencing regarding the drug quantities supplied.

The High Court found that the Court of Appeal did not err in its assessment of the seriousness of the principal offence or in its approach to sentencing the drug quantities. The Court concluded that the criminality of the different offences was correctly considered discretely and that the overall sentence imposed was appropriate. The High Court found no basis for interfering with the assessment of the Court of Appeal and, therefore, refused the appellant leave to appeal.

Orders