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Sponberg v R

Sponberg v R

Case [2017] NSWCCA 120 2 June 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sponberg v R [2017] NSWCCA 120
Hearing dates: 17 March 2017
Date of orders: 02 June 2017
Decision date: 02 June 2017
Before: Macfarlan JA at [1];
Latham J at [49];
Campbell J at [50]
Decision:
(1)   Grant leave to appeal in respect of the sentence imposed on Count 1 of the Indictment.

(2)   Allow the appeal.

(3) Quash the sentence imposed by the District Court on 17 May 2016 in respect of Count 1 of the Indictment, namely the offence pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

(4)   In respect of the Count 1 offence, and taking into account the offence on the Form 1, sentence the applicant to a term of imprisonment of 5 years and 3 months commencing on 26 February 2015 and concluding on 25 May 2020, comprising a non-parole period of 3 years and 6 months and a balance of term of 1 year and 9 months.

(5)   Taking into account the sentence imposed in the District Court on Count 2, which remains effective and is wholly concurrent with the above sentence on Count 1, the applicant’s total term of imprisonment in respect of the two Counts is as stated in respect of Count 1.
(6)   The applicant is eligible to be released on parole on 26 August 2018.
Catchwords:
CRIMINAL LAW – appeal against sentence – supply commercial quantity of prohibited drug (cocaine) – whether sentencing judge failed properly to assess objective seriousness of the offence – need to determine relative seriousness of offending – applicant resentenced

CRIMINAL LAW – appeal against sentence – possess an unauthorised firearm – whether sentencing judge failed to consider s 5 Crimes (Sentencing Procedure) Act 1999 (NSW)
CRIMINAL LAW – appeal against sentence – possess an unauthorised firearm – supply commercial quantity of prohibited drug (cocaine) – whether sentencing judge failed to take into account applicant’s lack of criminal record as a matter affecting leniency
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
Criminal Appeal Act 1912 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2), Sch 1
Firearms Act 1996 (NSW), ss 7(1), 36(1), 39(1), 63(3)
Cases Cited: AB v R [2013] NSWCCA 273
Auon v R [2011] NSWCCA 284
Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150
Douar v The Queen (2005) 159 A Crim R 154; [2005] NSWCCA 455
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Parris v R [2013] NSWCCA 5
R v Cage [2006] NSWCCA 304
R v Campbell [2014] NSWCCA 102
R v Kilic (2016) 91 ALJR 131

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 Sponberg v R

Details

AGLC: Sponberg v R [2017] NSWCCA 120
Case: [2017] NSWCCA 120
Decision Date: 02 June 2017

CaseChat Overview and Summary

The applicant, Sponberg, appealed against his sentence imposed by the Supreme Court of New South Wales for supplying a commercial quantity of cocaine and possessing an unauthorised firearm. The appeal was heard by the Court of Criminal Appeal. Sponberg argued that the sentencing judge failed to properly assess the objective seriousness of the offences, did not consider statutory provisions concerning the relative seriousness of multiple offences, and did not take into account his lack of a criminal record when considering the appropriate level of leniency.

The primary legal issues before the Court of Criminal Appeal were whether the sentencing judge had correctly assessed the objective seriousness of the offences, adequately considered the relative seriousness of the multiple charges, and appropriately factored in the applicant's lack of a criminal record. The Court needed to determine if the original sentence was proportionate and whether it reflected an accurate understanding of the relevant legal principles.

The Court of Criminal Appeal found that the sentencing judge had not properly assessed the objective seriousness of the offences. The judge did not adequately consider the relative seriousness of the drug supply and firearm possession charges, nor did they appropriately weigh Sponberg's lack of a criminal record in determining the appropriate level of leniency. The Court concluded that the original sentence was insufficient and resentenced Sponberg, taking into account the deficiencies identified in the appeal.

In conclusion, the Court of Criminal Appeal quashed the original sentence and resentenced Sponberg, reflecting a more accurate application of the relevant legal principles. The Court emphasised the importance of properly assessing the objective seriousness of offences, considering the relative seriousness of multiple charges, and taking into account the offender's criminal history when determining the appropriate level of leniency.

Orders