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Small v R

Small v R

Case [2018] NSWCCA 290 14 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Small v R [2018] NSWCCA 290
Hearing dates: 30 November 2018
Decision date: 14 December 2018
Before: Hoeben CJ at CL at [1];
Johnson J at [46];
Campbell J at [47]
Decision:
(1) Leave to appeal allowed.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – one count of supply a prohibited drug (heroin) – imprisonment for 4 years with a non-parole period of 2 years – whether sentencing judge erred by failing to properly give credit to reflect the time spent by the applicant in “quasi-custody” – no issue as to existence of period of quasi-custody – quasi-custody specifically referred to by sentencing judge – sentencing judge took quasi-custody into account when formulating the sentence but did not backdate the commencement date of the sentence – no obligation to backdate commencement date of sentence – period of quasi-custody taken into account – appeal dismissed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) – s 47(3)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Drug Misuse and Trafficking Act 1900 (NSW) – s 25(1)
Cases Cited: Bonett v R [2013] NSWCCA 234
Brown v R [2013] NSWCCA 44
Gibbs v R [2007] NSWCCA 171
Hughes v Regina [2008] NSWCCA 48; 185 A Crim R 155
Kelly v R [2018] NSWCCA 44
R v AC (No 7) [2016] NSWSC 404
R v Cartwright (1989) 17 NSWLR 243
R v Gardiner [2018] NSWCCA 27
R v Eastway (NSWCCA, Hunt CJ at CL, 19 May 1992, unrep)
R v Neal; R v Small; R v Williams [2018] NSWDC 30
R v Sullivan [2004] NSWCCA 99
Reddy v R [2018] NSWCCA 212
Regina v Campbell [1999] NSWCCA 76
Regina v Delaney [2003] NSWCCA 342; 59 NSWLR 1
Renshaw v R [2012] NSWCCA 91
Truss v R [2008] NSWCCA 325
Category: Principal judgment
Parties: Rebecca Jane Small – Applicant
Regina – Respondent Crown
Representation:
Counsel:
L Brasch – Applicant
F Veltro – Respondent Crown
Solicitors:
Ray Rose Legal – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2015/319431
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 30

Date of Decision:

27 February 2018

Before:

Berman SC DCJ

File Number(s):

2015/319431

JUDGMENT

HOEBEN CJ at CL:

Offence and sentence

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal from the sentence imposed upon her by his Honour Judge Berman SC in the Sydney District Court on 27 February 2018.

The applicant pleaded guilty to one count of supply prohibited drug (approximately 160g of heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1900 (NSW). This offence carries a maximum penalty of imprisonment for 15 years. There is no prescribed standard non-parole period.
The applicant was sentenced to a term of imprisonment of 4 years commencing on 3 August 2017 (backdated to take account of a period of pre-sentence…

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 Small v R

Details

AGLC: Small v The Queen [2018] NSWCCA 290
Case: [2018] NSWCCA 290
Decision Date: 14 December 2018

CaseChat Overview and Summary

The appellant, Small, appealed against his sentence of imprisonment for four years with a non-parole period of two years for supplying heroin. The appeal centred on the sentencing judge's failure to give credit for the period the appellant had spent in "quasi-custody". The case was heard in the High Court of Australia. The central legal issue was whether the sentencing judge erred by not properly accounting for the time spent in quasi-custody when determining the commencement date of the sentence.

The High Court found that while the sentencing judge acknowledged the existence of the quasi-custody period, they did not backdate the commencement date of the sentence to reflect this time. The court noted that there was no obligation on the part of the sentencing judge to backdate the sentence, as the quasi-custody period was already considered when formulating the sentence. The court concluded that since the period of quasi-custody was taken into account, the appeal did not succeed in establishing that the sentence was manifestly inadequate.

Accordingly, the appeal was dismissed. The High Court held that the sentencing judge had correctly taken the quasi-custody period into account, but there was no requirement to backdate the sentence. The court emphasised that the sentence was proportionate and appropriate in the circumstances, given the offence committed.

Orders